                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       August 7, 2018




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 PRO-ACTIVE HOME BUILDERS, INC.,                                   No. 51047-2

                               Appellant,

         v.

 WASHINGTON STATE DEPARTMENT OF                             UNPUBLISHED OPINION
 LABOR AND INDUSTRIES,

                               Respondent.

        LEE, A.C.J. – Pro-Active Home Builders, Inc. (Pro-Active) appeals seven citations issued

by the Department of Labor and Industries (Department) for violations of the Washington

Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. Pro-Active contends

that substantial evidence does not support the Board of Industrial Insurance Appeals’ (Board’s)

finding that Pro-Active had knowledge of the safety violations and the findings of fact do not

support the Board’s conclusion that Pro-active failed to prove the conduct was the result of

unpreventable employee misconduct. We affirm.

                                             FACTS

A.      JOB SITE CITATIONS

        Pro-Active installs siding and trim on new homes. Pro-Active contracted to install siding

on two adjoining homes in Tumwater. The homes were two-story buildings that were over 10 feet

high.
No. 51047-2-II



       On January 13, 2014, one of Pro-Active’s superintendents, John Hodges, visited the

Tumwater site. Hodges observed a lead worker, Onofre Valadez Gomez, on the roof of one of the

homes without safety equipment. He told Valadez to make sure he used his safety line to connect

his harness to an anchor. Hodges considered this a verbal warning. Hodges then left Valadez in

charge of safety at the site. Hodges testified that Pro-Active employees were trained in the proper

use of scaffold and fall protections. Hodges also claimed the company held safety meetings and

disciplined workers who violated safety protocol.

       Later that day, Valadez constructed a scaffold that used a ladder as the walkway. Valadez

was not trained in how to construct scaffold. The scaffold was potentially unstable and if it fell

could cause death or serious injury.

       While Valadez worked on the roof, Department inspector Raul De Leon arrived at the site

and observed from his car Valadez walking on the roof without fall protection. Inspector De Leon

also observed Valadez walk on the scaffold without fall protection. Valadez was in charge when

De Leon visited the site. Pro Active admits that Valadez was exposed to fall hazards for not using

a safety line while on the roof and while walking on the scaffold.

       Inspector De Leon observed at the other home another employee, Martin Gonzalez

Verdozco, on a scaffold that used a pump jack scaffold that was not secured to the ground with

spikes. Gonzalez testified he erected the scaffold but could not recall if he used spikes. Inspector

De Leon took pictures of the scaffold. Gonzalez testified that he could not see spikes in the pictures

and that if there were spikes they would show in the picture. Gonzalez, who had worked for Pro-




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No. 51047-2-II



Active for two years, testified he never observed Pro-Active discipline an employee for safety

violations other than Valadez on January 13, 2014.

       Pro-Active’s owner, Chad Hansen, claimed Pro-Active did not approve of the scaffold that

Valadez was standing on and always used spikes to secure the scaffold to the ground

       The Department cited Pro-Active for the following seven WISHA violations:

           1-1.       The employer did not ensure the employees exposed to fall hazards over 4
                  feet on steep pitched roofs used appropriate fall protection in violation of WAC
                  296-155-24609(07)(a).

           1-2.       The employer did not ensure that scaffolds were erected only when the work
                  is supervised and directed by a competent person AND done by experienced
                  and trained employees selected by the competent person in violation of WAC
                  296-874-20004.

           1-3.      The employer did not ensure that scaffolds were properly designed and
                  constructed by a qualified person in violation of WAC 296-874-20002.

           1-4.       The employer did not ensure that employees working from a scaffold
                  platform were provided with appropriate safe access in violation of WAC 296-
                  874-20020.

           1-5.       The employer did not ensure that employees working from scaffold
                  platforms at heights over 10 feet used appropriate personal fall arrest systems
                  in violation of WAC 296-874-20052.

           1-6.       The employer did not ensure that ladders used by employees on site, were
                  used in accordance with manufacture’s instructions and in a way they were
                  designed for and intended to be used in violation of WAC 296-876-40005.

           1-7.      The employer did not ensure that pump jack scaffolds used on site met the
                  requirements of having the bottom part of the poles secured in violation of 296-
                  874-40032.

All violations are characterized as “serious” violations. Board Record (BR) at 69-72.




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No. 51047-2-II



B.     PRO-ACTIVE APPEALS TO THE BOARD

       Pro-Active appealed to the Board, arguing that unpreventable employee misconduct

excused its violations. The Board rejected Pro-Active’s argument, deciding that Pro-Active did

not prove that it took adequate steps to correct violations of its safety rules or enforced its safety

program. The Board affirmed the citations.

C.     PRO-ACTIVE APPEALS TO THE SUPERIOR COURT

       Pro-Active appealed to the superior court, which also rejected its unpreventable employee

misconduct defense. The superior court, however, remanded for a further finding of fact regarding

employer knowledge. On remand, the Board entered findings of fact and conclusions of law,

specifically finding that “Pro-Active Home Builders, Inc. had constructive knowledge of all seven

serious violations because it could have discovered or prevented them by exercising reasonable

diligence.” Clerk’s Papers (CP) at 11. The Board further found:

               18. Pro-Active Home Builders, Inc., failed to effectively enforce safety
       rules regarding fall protection and the construction and use of scaffolds on January
       13, 2014.

               19. Pro-Active Home Builders, Inc., did not take adequate steps to correct
       violations of its safety rules on January 13, 2014.

               20. On January 13, 2014, Pro-Active Home Builders, Inc., did not
       effectively enforce its safety program.

CP at 12 The Board concluded “Pro-Active Home Builders, Inc., does not meet the requirements

for vacating this Corrective Notice of Redetermination . . . based on unpreventable employee

misconduct.” CP at 13.




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No. 51047-2-II



       Pro-Active again appealed to the superior court, which affirmed the Board’s order. Pro-

Active now appeals to this court.

                                           ANALYSIS

       Pro-Active argues the Department failed to prove it had actual or constructive knowledge

of the violations, and, even if the Department did prove knowledge, Pro-Active should not have

been fined because the actions were based on unpreventable employee misconduct. We disagree.

A.     STANDARD OF REVIEW

       Appeals from the Board are governed by the Administrative Procedure Act (APA), chapter

34.05 RCW. Steven Klein, Inc. v. Dep’t of Revenue, 183 Wn.2d 889, 895, 357 P.3d 59 (2015).

We review the Board’s final order, rather than the superior court’s decision, and we sit in the same

position as the superior court. Freeman v. Dep’t of Soc. & Health Servs., 173 Wn. App. 729, 736,

738, 295 P.3d 294 (2013).

       Under the APA, we review the Board’s findings of fact for substantial evidence. Id.

Evidence is substantial where it is sufficient to persuade a fair-minded, rational person of the

finding’s truth. Raven v. Dep’t of Soc. & Health Servs., 177 Wn.2d 804, 817, 306 P.3d 920 (2013).

“We view the evidence and reasonable inferences in the light most favorable to the prevailing

party—here, the Department.” Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn.

App. 25, 35, 329 P.3d 91 (2014). We review the Board’s conclusions of law de novo to determine

whether the Board correctly applied the law and whether the Board’s findings of fact support its

conclusions of law. RCW 34.05.570(3)(d); Hardee v. Dep’t of Health & Soc. Servs., 152 Wn.

App. 48, 55, 215 P.3d 214 (2009).




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No. 51047-2-II



B.     EMPLOYER KNOWLEDGE

       Under WISHA, an employer has a general duty to employees to provide employees a place

of employment free from recognized hazards that are causing or likely to cause serious injury or

death and a specific duty to comply with the rules, regulations, and orders promulgated under

WISHA. RCW 49.17.060(1), (2); J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139 Wn. App.

35, 43-44, 156 P.3d 250 (2007). “RCW 49.17.180(2) mandates the assessment of a penalty against

an employer when a proven violation is ‘serious.’ ” J.E. Dunn, 139 Wn. App. at 44.

       A “serious” violation of a WISHA regulation is defined as follows:

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

RCW 49.17.180(6).

       When alleging a violation of WISHA regulations against an employer, the Department

bears the initial burden of proving the existence of that violation. WAC 263-12-115(2)(b); J.E.

Dunn, 139 Wn. App. at 44. When an alleged violation is designated “serious,” the Department

bears the burden of proving not only the existence of the elements of the violation itself, but also

the existence of those additional elements of a “serious” violation enumerated in RCW

49.17.180(6). J.E. Dunn, 139 Wn. App. at 44 (citing SuperValu, Inc. v. Dep't of Labor & Indus.,

158 Wn.2d 422, 433 n.7, 144 P.3d 1160 (2006)).




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No. 51047-2-II



       Accordingly, to establish its prima facie case in regard to a serious violation of a WISHA

regulation, the Department must prove each of the following elements:

       (1) the cited standard applies; (2) the requirements of the standard were not met;
       (3) employees were exposed to, or had access to, the violative condition; (4) the
       employer knew or, through the exercise of reasonable diligence, could have known
       of the violative condition; and (5) ‘there is a substantial probability that death or
       serious physical harm could result’ from the violative condition.

Washington Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906, 914, 83 P.3d

1012 (2003) (quoting D.A. Collins Constr. Co., Inc. v. Sec’y of Labor, 117 F.3d 691, 694 (2nd

Cir.1997), review denied, 152 Wn.2d 1003 (2004). Pro-Active challenges the knowledge element.

       An employer’s knowledge can be actual or constructive, and common knowledge can be

used to establish that a hazard is recognized. W. Oilfields Supply v. Washington State Dep’t of

Labor & Indus., 1 Wn. App. 2d 892, 903, 408 P.3d 711 (2017).

       Here, the Board found “Pro-Active Home Builders, Inc. had constructive knowledge of all

seven serious violations because it could have discovered or prevented them by exercising

reasonable diligence.” CP at 11. We, therefore, examine whether substantial evidence shows

constructive knowledge.

       In general, constructive knowledge is established where the employer in the “exercise of

reasonable diligence” could have become aware of the condition.           RCW 49.17.180(6).    “

‘Reasonable diligence involves several factors, including an employer’s obligation to inspect the

work area, to anticipate hazards to which employees may be exposed, and to take measures to

prevent the occurrence.’ ” Erection Co., Inc. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 206-

07, 248 P.3d 1085 (quoting Kokosing Constr. Co. v. Occupational Safety & Hazard Review




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No. 51047-2-II



Comm’n, 232 Fed. Appx. 510, 512 (6th Cir. 2007)), review denied, 171 Wn.2d 1033 (2011).

Constructive knowledge may be demonstrated by the department in a number of ways, including

evidence showing that the violative condition was readily observable or in a conspicuous location

in the area of the employer’s crews. Erection Co., Inc., 160 Wn. App. at 207.

       The record shows that Pro-Active’s superintendent, Hodges, was onsite the day of the

WISHA violations. Hodges observed Valadez on the roof without safety equipment and told

Valadez to make sure he used his safety line to connect his harness to an anchor. Hodges then left

Valadez in charge of safety at the job site. It was obvious that the job site required scaffolding

since the houses were two-story building and over 10 feet high. Valadez was not trained in how

to construct a scaffold, he constructed a scaffold that used a ladder as the walkway without fall

protection. The scaffold was potentially unstable and if it fell could cause death or serious injury.

Hodges acknowledged that Valadez did not correctly erect the scaffold. Inspector De Leon could

see the safety violations from his car when he arrived at the jobsite.

       At the other house located on the jobsite, Gonzalez constructed scaffolding that used a

pump jack scaffold that was not secured to the ground with spikes. The missing spikes would be

noticeable when looking at the scaffold.

       Based on these facts, the violative conditions, as set forth in items 1-1 through 1-7 were

readily observable or in a conspicuous location in the area of Pro-Active’s crew. Pro-Active could

have become aware of the conditions with the “exercise of reasonable diligence.”               RCW

49.17.180(6).




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No. 51047-2-II



        Pro-Active argues that there is no evidence to show that the condition existed for a

sufficient period of time to be identified for Items 1-1 and 1-5 and that the Department double

cited Pro-Active for Items 1-1 and 1-5. Item 1-1 relates to employees being exposed to fall hazards

without fall protection and Item 1-5 relates to employees working from scaffold platforms at

heights over 10 feet without using fall arrest systems.

        First, Washington has not included duration as a required element to prove an employer’s

constructive knowledge; rather, we look to whether the violative condition was readily observable

or in a conspicuous location. Erection Co., Inc., 160 Wn. App. at 207. Focusing on duration may

have the adverse effect of encouraging inspectors to leave workers in dangerous situations to prove

a violation.

        Second, Items 1-1 and 1-5 are not citations for the same violation. Item 1-1 relates to

Valadez working on a roof without fall protection and Item 1-5 relates to him working on scaffold

without fall protection. The exposure to fall hazards is in different locations.

        Based on the above, substantial evidence supports the Board’s finding that Pro-Active had

constructive knowledge of all seven serious violations.

C.      UNPREVENTABLE EMPLOYEE MISCONDUCT

        We next turn to whether Pro-Active established the affirmative defense of unpreventable

employee misconduct. The Department may not issue a citation if unpreventable employee

misconduct caused the violation. RCW 49.17.120(5)(a).

        RCW 49.17.120(5)(a) establishes the requirements for the affirmative defense of

unpreventable employee misconduct. To succeed on its claim, Pro-Active had to show (1) a




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No. 51047-2-II



thorough safety program (including work rules, training, and equipment designed to prevent the

violation), (2) adequate communication of these rules, (3) steps to discover and correct violations,

and (4) effective enforcement of its safety program as written in practice and not just in theory.

RCW 49.17.120(5); W. Oilfields Supply, 1 Wn. App. 2d at 906-07. In order to show that a safety

program is effective in practice, the employer must prove that the employee’s misconduct was an

isolated occurrence and was not foreseeable. Washington Cedar, 119 Wn. App. at 913. This

affirmative defense applies in “situations in which employees disobey safety rules despite the

employer’s diligent communication and enforcement.” Asplundh Tree Expert Co. v. Dep’t of

Labor & Indus., 145 Wn. App. 52, 62, 185 P.3d 646 (2008).

       The Board found that Pro-Active did not adequately try to correct safety violations and that

it did not effectively enforce its safety program. The Board concluded that Pro-Active did not

meet its burden to show unpreventable employee misconduct. The Board did not err.

       First, Pro-Active failed to show it tried to discover and correct safety violations. To prove

unpreventable employee misconduct, the employer must show that the conduct was idiosyncratic

and not foreseeable. Washington Cedar, 119 Wn. App. at 916. Here, the conduct was foreseeable

because Hodges witnessed Valadez violating a safety rule that day. Despite seeing Valadez

commit a safety violation, the superintendent left him in charge of safety and made no further

attempt to monitor Valadez’s compliance with safety rules.

       Pro-Active argues that where an employee has just been reminded of the safety

requirements, those safety standards are fresh in their mind and it would be foreseeable that the

employee would be cognizant and abide by the rules. But, the opposite inference may also be




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No. 51047-2-II



raised by knowledge that an employee is flouting safety rules and that the employee may require

additional monitoring.

       Also, the job site required scaffolding to work in the location where Valadez erected the

scaffold. Hodges left Valadez at the house even though he was not competent in scaffold

construction, and Hodges did not verify that a competent person would erect the scaffold. Further,

there is no evidence that Hodges inspected the pump jack scaffold at the second house to look for

safety violations, and he did not testify that the scaffold was properly secured.

       Second, Pro-Active has provided no documentary evidence that it disciplined any

employees for violating safety rules before the violations here. In BD Roofing, Inc. v. Dep’t of

Labor & Indus., 139 Wn. App. 98, 113, 161 P.3d 387 (2007), there was no documentary evidence

showing it disciplined its employees or implemented its written discipline policy, and the court

held that the employer did not show its safety program was effective in practice. Id. Without

showing actual enforcement of a company’s disciplinary policy, the employer cannot meet its

burden to show unpreventable employee misconduct. And the Board can rely on the lack of

documented evidence to determine whether the program is effective in practice. Id.

       Although Pro-Active claims it disciplined Valadez once verbally before the inspection, it

did not verify by documentation that it disciplined any other Pro-Active employee. Gonzalez, who

had worked for Pro-Active for two years, had never seen Pro-Active discipline an employee other

than Valadez’s on January 13, 2014. And Gonzalez had seen others working without fall

protection.




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No. 51047-2-II



        Based on the above, substantial evidence supports the Board’s findings that:

                18. Pro-Active Home Builders, Inc., failed to effectively enforce safety
        rules regarding fall protection and the construction and use of scaffolds on January
        13, 2014.

                19. Pro-Active Home Builders, Inc., did not take adequate steps to correct
        violations of its safety rules on January 13, 2014.

                20. On January 13, 2014, Pro-Active Home Builders, Inc., did not
        effectively enforce its safety program.

CP at 12. These findings of fact in turn support the Board’s conclusion of law that “Pro-Active

Home Builders, Inc., does not meet the requirements for vacating this Corrective Notice of

Redetermination . . . based on unpreventable employee misconduct.” CP at 13.

        Accordingly, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                     Lee, A.C.J.
 We concur:



 Bjorgen, J.




 Melnick, J.




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