Chinook Roofing & Gutters v. Department Of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: November 23, 2020
• Docket: 81133-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CHINOOK ROOFING & GUTTERS, ) No. 81133-9-I ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) WASHINGTON STATE DEPARTMENT ) OF LABOR & INDUSTRIES, ) ) Respondent. )

ANDRUS, A.C.J. —Chinook Roofing & Gutters (Chinook) appeals a decision

of the Board of Industrial Insurance Appeals (Board) affirming the Department of

Labor & Industries (Department) citation for violating fall protection regulations.

Because substantial evidence supports the Board’s findings, we affirm.

FACTS

Chinook installs steep slope and commercial low slope roofing. In October

2017, Department compliance safety and health officer Michael Crews observed

four Chinook employees–Manuel Prado, Geraldo Villasenor, Pedro Gonzalez, and

Cristian Tovar–working on a steep slope 1 roofing project in Kenmore, Washington.

1 A steep pitched roof has a slope greater than 4 in 12. Former WAC 296-155-24609(7)(a). The roof at issue in this case had a pitch of 5 in 12.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81133-9-I/2

Despite being approximately 28 feet off the ground, three of the four men worked

for an extended period of time without attaching their fall-protection lifelines to

available roof anchors. Crews saw one worker lean over the roof’s edge without

securing his lifeline.

The Department cited Chinook for violating former WAC 296-155-24609(1)

(2016), repealed by Wash. St. Reg. 20-12-091 (effective 10/01/20) 2 based on the

workers’ failure to connect their lifelines to available anchor points. It cited Chinook

for violating former WAC 296-155-24611(2) 3 based on its failure to have a fall

protection work plan at the worksite.

Chinook appealed these citations to the Board. At the administrative hearing,

Chinook claimed it had implemented an in-depth training program on proper fall

protection procedures, had inspected the site earlier that day to ensure its workers

were using their fall protection equipment properly, and had no reason to know these

employees were violating safety regulations. It also raised the affirmative defense

that the violation was the result of unpreventable employee misconduct.

The Board found that while Chinook had an adequate safety program,

including safety rules and training, it failed to effectively enforce this program. It

affirmed the citation for the serious violation of former WAC 296-155-24609(1) and

corresponding penalty of $1,800. The Board vacated the citation for the violation of

2 The fall protection standards contained in former Chapter 296-155 WAC were amended and consolidated into Chapter 296-880 WAC. See Wash. St. Reg. 20-12-091. Former WAC 296-155- 24609 is now set out in WAC 295-880-20005. 3 Former WAC 296-155-24611 is now set out in WAC 295-880-10020.

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former WAC 296-155-24611(2), concluding the Department had not proved this

violation occurred. Chinook appeals.

ANALYSIS

Chinook challenges the Board’s finding that it violated former WAC 296-155-

24609(1), arguing substantial evidence does not support the finding that Chinook

had knowledge of its workers’ safety violations. In the alternative, Chinook argues

the Board erred in rejecting its affirmative defense of unpreventable employee

misconduct, arguing substantial evidence does not support the Board’s finding that

Chinook’s safety plan was ineffective in practice.

In a Washington Industrial Safety and Health Act of 1973 4 (WISHA) appeal,

this court reviews the Board’s decision directly, based on the record before the

agency. J.E. Dunn Nw, Inc., v. Dep’t of Labor & Indus., 139 Wn. App. 35, 42, 156

P.3d 250 (2007) (citing Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wn.

App. 356, 363, 119 P.3d 366 (2005)). The Board’s findings are conclusive if they

are supported by substantial evidence in light of the record as a whole. J.E. Dunn

Nw, 139 Wn. App. at 43; RCW 34.05.570(3)(e). Substantial evidence is evidence

sufficient “to persuade a fair-minded person.” 139 Wn. App. at 43. This court

reviews the Board’s conclusions of law to determine whether they are supported by

its findings of fact. Id. at 42. The reviewing court does not reweigh the evidence.

Davis v. Dep’t of Labor & Indus., 94 Wn. 2d 119, 124, 615 P.2d 1279 (1980).

4 Chapter 49.17 RCW.

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A. Constructive Knowledge of the Violation

Chinook first argues that the Board’s finding that Chinook had knowledge of

its employees’ safety violations is not supported by substantial evidence. We reject

this argument.

Employers must “ensure that the appropriate fall protection system is

provided, installed, and implemented . . . when employees are exposed to fall

hazards of 4 feet or more. . .” former WAC 296-155-24609(1). The Department

bears the burden of proving that a violation occurred. Mowat Constr. Co. v. Dep’t

of Labor & Indus., 148 Wn. App. 920, 924, 201 P.3d 407 (2009). To establish a

serious violation of a WISHA safety regulation, the Department must prove:

(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.

Frank Coluccio Constr. Co. v. Dep't of Labor & Indus., 181 Wn. App. 25, 36-37, 329

P.3d 91 (2014) (quoting Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus. 119

Wn. App. 906, 914, 83 P.3d 1012 (2003)). Chinook challenges only the evidence

supporting the fourth element of knowledge.

Under RCW 49.17.180(6), the Department may prove employer knowledge

with evidence of either actual or constructive knowledge. Potelco, Inc. v. Dep’t of

Labor & Indus., 191 Wn. App. 9, 34, 361 P.3d 767 (2015). Constructive knowledge

exists where, in the exercise of reasonable diligence, an employer could have

known of the violation. RCW 49.17.180(6). “‘Reasonable diligence’ includes the

obligation of an employer to inspect the work site, anticipate hazards that employees

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may be exposed to, and take measures to prevent the occurrence of a violative

condition.” Bayley Constr. v. Dep't of Labor & Indus., 10 Wn. App. 2d 768, 783, 450

P.3d 647 (2019), review denied, 195 Wn.2d 1004, 458 P.3d 788 (2020) (citing

Erection Co., v. Dep't of Labor & Indus., 160 Wn. App. 194, 248 P.3d 1085 (2011)).

Reasonable diligence includes a duty to adequately supervise employees. Thomas

G. Gallagher, Inc. v. Occupational Safety & Health Review Comm'n, 877 F.3d 1, 9

(1st Cir. 2017); N & N Contractors, Inc. v. Occupational Safety & Health Review

Comm'n, 255 F.3d 122, 127 (4th Cir. 2001).

An employer has constructive knowledge of a hazardous condition if it is

readily observable or in a conspicuous location in the area of the employer’s crews.

BD Roofing, Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 98, 109-10, 161 P.3d 387

(2007). The Department may show constructive knowledge with evidence that a

violation was in plain view. Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d

236, 244, 433 P.3d 513 (2018).

The Board found Chinook had constructive knowledge of its employees’

violations because their actions were in plain view. Substantial evidence supports

this finding. Crews testified that he went to the site after the Department received

an anonymous tip regarding unsafe work behavior. When he arrived and located

the Chinook workers, Crews positioned himself so that he could observe them on

the roof. Using his binoculars, Crews observed that three of the four employees on

the roof were not wearing proper fall protection safety equipment. From his vantage

point, Crews took pictures and documented the Chinook workers’ noncompliance

with fall protection regulations. The pictures, admitted as exhibits at the hearing,

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demonstrated that the employees did not have lifelines affixed to their harnesses

while they worked. The pictures further demonstrated that one employee was

unsecured while leaning over the edge of the roof. Their violations were readily

apparent to Crews.

After watching the workers for an hour, Crews contacted the crew. He spoke

with Tovar, who spoke English and translated his questions to the other workers.

Tovar told him that Prado was the lead employee for the crew. But Chinook

representatives testified that Prado was neither a supervisor nor a crew leader.

Although Chinook’s production manager, Augustin Tovar, testified he

conducted a site safety inspection that morning, during which time all of the workers

were wearing fall protection and were properly tied off to safety anchors, he admitted

that when he left the job site, there was no on-site supervisor of the crew. This

evidence supports the Board’s findings that Chinook could have observed the

workers’ failure to use fall protection equipment had it exercised reasonable

diligence in supervising these employees.

Chinook argues the Department did not present evidence that Chinook failed

to exercise due diligence in supervising its crew. It points to the efforts it took to

train the employees, to inspect the work area, and to prevent fall protection

violations from occurring. These efforts, Chinook argues, make it “clear” that the

violations “were unforeseeable, contrary to the extensive training that [the

employees] received, and contradictory to the regular observations made by

[supervisors].” The standard on appeal, however, is whether Chinook “knew or

should have known of the violative condition—not whether the behavior that led to

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the violation was foreseeable.” Potelco, Inc. v. Dep't of Labor & Indus., 194 Wn.

App. 428, 440, 377 P.3d 251 (2016) (emphasis in original).

Here, there is sufficient evidence to support the conclusion that, had Chinook

exercised reasonable diligence through adequate supervision, it would have

discovered the violations. Chinook witnesses testified that supervisors were often

absent from its job sites and employees are expected to work on an honor system

where they call and report other employees’ unsafe or violative behaviors. But the

workers in this case had a history of fall protection safety violations. Chinook

disciplined Prado in both March and May of 2017 for safety violations. In fact, he

was cited for exactly the same behavior—leaning over the edge of a roof without

adequate fall protection—as the Department observed on October 5. Chinook cited

Villasenor in July 2017 for not being tied off while working on a three-story-high roof

and cited Tovar in June 2017 for not properly using his personal protective

equipment. This evidence is sufficient for the Board to have found that Chinook’s

supervision of its employees did not rise to the level of reasonable diligence.

Chinook contends that the Board’s finding effectively requires it to “maintain

constant vigilance over the workers and the worksite to avoid WISHA liability,”

which, it argues, amounts to strict liability. We disagree. In Potelco 191 Wn. App.,

this court rejected a similar argument. In that case, an electrical company hired

third-party flaggers to help control traffic at its worksites. After the Department cited

Potelco for flagging violations, it argued it was being held strictly liable for the

conduct of non-employees. Id. at 33. The court concluded the citations were not

based on strict liability but were instead based on evidence that Potelco knew or

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could have known of the flaggers’ safety violations. Id. Requiring the Department

to prove either actual or constructive knowledge of the violations eliminated any risk

of strict liability.

Here, as in Potelco, the Department was required to prove, and did prove

that Chinook had constructive knowledge of its employees’ safety violations.

Chinook chose not to provide an on-site supervisor for workers known to the

company to have violated fall protection requirements on more than one occasion.

Although a site supervisor traveled to the work site to conduct periodic inspections,

when the supervisor left the site, he left no one in charge of ensuring workplace

safety compliance. The employees’ failure to comply with the fall protection

requirements was open and obvious to any observer and would have been seen by

a Chinook supervisor. A reasonable trier of fact could find that Chinook’s

supervision was not reasonably diligent under these circumstances.

Because there is sufficient evidence demonstrating that, had it exercised

reasonable diligence, Chinook could have known of the safety violations, we affirm

the Board’s finding that it committed a serious violation of former WAC 296-155-

24609(1).

B. Unpreventable Employee Misconduct

Chinook next argues the Board erred in finding that Chinook failed to

establish the affirmative defense of unpreventable misconduct. We disagree.

The Department may not issue a citation if unpreventable employee

misconduct caused the violation. RCW 49.17.120(5)(a). To establish this

affirmative defense, an employer must demonstrate the existence of:

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(i) A thorough safety program, including work rules, training, and equipment designed to prevent the violation; (ii) Adequate communication of these rules to employees; (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 (2003).

To show that a safety program is effective in practice, the employer must

present evidence that the employees’ misconduct was an isolated occurrence and

unforeseeable. Id. at 913. Prior citations for similar conduct may preclude the

defense of employee misconduct because “those prior violations provide notice to

the employer of the problem, thereby making repeat occurrences foreseeable . . .

[T]he existence of prior violations does not absolutely bar [the defense]; it merely is

evidence that the employee conduct was foreseeable and preventable.” Id. 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. Legacy Roofing, 129 Wn. App. at 365.

The Board found Chinook had developed a good safety plan, satisfying RCW

49.17.120(5)(a)(i). However, the Board also found that this safety plan “was not at

all effective in practice” because the Chinook employees “did not fully buy into [it].”

It thus concluded Chinook failed to establish effective procedures for enforcement

of its program in practice as required by RCW 49.17.120(5)(a)(iv).

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There is substantial evidence to support the Board’s findings. First,

Chinook’s documentation demonstrated that its employees’ misconduct was far

from an “isolated occurrence.” In the months prior to the citation, Chinook

documented four safety violations involving the same employees. Additionally,

Chinook’s job site safety inspection records revealed further employee safety

violations, including Gonzalez’s failure to wear safety glasses, Prado’s failure to

correctly tie a ladder to the roof, and Villasenor’s failure to tie off or to wear safety

glass.

The Board reasonably found that Chinook’s documentation shows it failed to

effectively enforce its safety program as written and that Chinook’s workers were

not consistently disciplined or penalized when they were found to be violating safety

rules. For example, on March 20, 2017, Prado was observed “kneeling on the roof

edge of the building” without adequate fall protection and he was suspended for two

days. The safety violation form indicates that further violations would result in

termination. But less than two months later, on May 15, 2017, Prado was caught

violating fall protection regulations by improperly tying off his lifeline. Despite

Chinook’s warnings that Prado would be terminated, he received only a written

warning for this violation.

There is also substantial evidence to support the finding that Chinook failed

to take adequate steps to discover employee safety violations. While Augustin

Tovar testified he visited the worksites “almost every day”, he also testified that

supervisors are often not present at job sites. He confirmed that no one else is in

charge of safety and he relies on other employees to report unsafe behaviors of

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coworkers. Furthermore, the job site safety inspection records establish only

sporadic—rather than daily—inspections. The records Chinook produced cover a

3-month period, from July 3, 2017 to October 5, 2017, but show only 17 safety

inspections during that timeframe. These records evidenced gaps in Chinook’s

safety inspections, including a 17-day period between September 7 and September

25 in which no inspections appear to have occurred.

Chinook contends the Board “completely ignored” the numerous measures

Chinook took to prevent any safety infractions from occurring, including the

preparation of a fall protection work plan, provision of fall protection training, site

inspections, and Chinook’s post-infraction discipline and safety counseling. To the

contrary, the Board acknowledged these measures and found Chinook had

developed a good safety plan. But, after the Board weighed all the available

evidence, it nevertheless found the plan was ineffective in practice. This court will

not reweigh the evidence. Davis, 94 Wn.2d at 124.

We conclude there was substantial evidence supporting the Board’s findings

that Chinook had constructive knowledge of its workers’ noncompliance with fall

protection regulations and that Chinook’s safety plan was not effective in practice.

We affirm.

WE CONCUR:

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