IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
INFRASOURCE SERVICES, LLC, No. 83948-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
MANN, J. — Infrasource Services, LLC (Infrasource) was cited by the Department
of Labor and Industries (Department) for violating the Washington Industrial Safety and
Health Act of 1973 (WISHA). Before the Board of Industrial Appeals (Board),
Infrasource argued the violation resulted from unpreventable employee misconduct.
The Board upheld the WISHA violation. Infrasource appeals and asserts the Board
erred in its conclusion that Infrasource failed to prove effective enforcement of its safety
program in practice, not just in theory. We affirm the trial court’s order affirming the
Board’s decision and order. 1
1 Infrasource also assigned error to the Board’s finding that Infrasource knew or by the exercise
of reasonable diligence should have known that Neil Mersman was operating the backhoe on May 10, 2019, while not using seatbelts. But Infrasource’s brief fails to argue this assignment. We will not consider an argument that is not adequately briefed or argued. Cowiche Canyon Conservancy v. Bosley, 118 Wn. 2d 801, 809, 828 P.2d 549 (1992). No. 83948-9-I/2
I.
Infrasource installs residential and commercial gas services for Puget Sound
Energy. In spring 2019, Infrasource had about 400 employees. On May 10, 2019, Neil
Mersman was working for Infrasource at a jobsite in West Seattle. Mersman was
operating a backhoe.
Department Compliance Safety and Health Officer Doug Fordice was performing
a drive-by inspection when he observed Mersman driving a backhoe down Delridge
Way SW—a busy road in West Seattle—without wearing his seatbelt. Fordice stopped,
took photos, and approached Mersman. Fordice asked Mersman why he was not
wearing his seatbelt and Mersman responded that he just forgot.
At the time, the foreperson, Nate Larson, was not at the jobsite. Larson was with
Infrasource’s Kent base superintendent, Alex Bartells, at a different jobsite. When they
learned that Fordice was on-site and had found a violation, Bartells and Larson went to
the West Seattle jobsite.
The Department issued a citation and notice of assessment for a serious
violation of WAC 296-155-615(1)(b) (failure to wear a seat belt). Infrasource appealed
the violation. After an informal conference, the Department issued a corrective notice of
redetermination. The Department affirmed the serious violation but reduced the penalty
from $6,000 to $2,700.
Infrasource appealed to the Board. The case was heard by an industrial appeals
judge (IAJ). At the hearing, various witnesses testified. Before the incident, Mersman
had worked for Infrasource for five years. Mersman testified that while he knew he was
required to wear a seatbelt, he had probably operated a backhoe without wearing a
-2- No. 83948-9-I/3
seatbelt before the May 10th incident. Mersman also testified that Bartells, the Kent
base superintendent, rarely visited jobsites, maybe once every five months. The
Infrasource field safety coordinator, Tom Green, would visit jobsites monthly. These
monthly site visits were directed at discovering safety issues. Observation of a worker
not wearing a seatbelt on a jobsite would be something the safety coordinator would
include in a field safety report. Mersman had never witnessed any field safety
coordinator communicating the need to wear seatbelts during their monthly safety
checks.
Bartells testified that Infrasource has a 52 weeks of Safety Training program 2 for
employees and holds meetings every other week, generally covering two topics per
meeting. These meetings occurred in the morning at the Kent base for 20 to 30
minutes, and were usually performed by Bartells or Green. Mersman testified, however,
that if an employee missed a meeting, they were not required to make it up. Employees
were never disciplined or reprimanded for missing the meetings. Bartells confirmed that
no one at Infrasource was in charge of ensuring that a particular crewmember attend
the trainings. Infrasource offered evidence that Mersman had attended safety trainings
in February 2018 and March 2019 that covered seatbelt use, but Mersman could not
recall the specific trainings.
Bryan Sabari, Vice President of Safety Training and Compliance, testified that
Infrasource has four steps to its discipline program. The first step is a verbal warning or
acknowledgment. The second step includes a verbal and written warning added to the
employee’s file. The third step escalates to time off without pay. Finally, the fourth step
2 In the record, these meetings are also called “Toolbox Talks.” The names are synonymous.
-3- No. 83948-9-I/4
is termination. Infrasource reserves the right to enact any of those steps in any order
depending on the violation, circumstances, and employee’s history. Sabari testified that
Infrasource encourages retraining an employee over discipline.
Sabari testified that safety coordinators conducting random site visits would look
for seatbelt use. Sabari could not recall whether Infrasource had ever received a
citation related to seatbelt use. While Sabari acknowledged that Infrasource would
discipline employees for failure to follow safety policies or procedures, he also testified
that Infrasource doesn’t share disciplinary actions with employees other than the
employee being disciplined.
Fordice testified that when he spoke with Infrasource’s safety manager 3 about
the incident, they said that seatbelt use had been discussed with Mersman in the past.
To Fordice, “that would be all the more reason to keep a foreman on site at a minimum
or a safety manager at a minimum on site to make sure that operators are wearing their
seatbelts.” He also found Infrasource was inconsistent with its disciplinary policy based
on reviewing traffic infractions.
The IAJ issued a proposed decision and order affirming the citation. The Board
granted Infrasource’s petition for review of the proposed decision and order. The Board
agreed with the IAJ and affirmed the citation.
Infrasource appealed the Board’s decision to the superior court, which
determined that the Board’s findings and conclusions were supported by substantial
evidence, and affirmed.
3 Fordice’s inspection worksheet reveals that for his closing conference he spoke to both Larry
Rupe and Henrik Nielsen. Rupe testified that it was just himself and Fordice on the call.
-4- No. 83948-9-I/5
Infrasource appeals.
II.
A.
In a WISHA appeal, we directly review the Board’s decision based on the record
before the agency. Frank Coluccio Constr. Co. v. Dep’t of Lab. & Indus., 181 Wn. App.
25, 35, 329 P.3d 91 (2014). The Board’s findings of fact are conclusive if supported by
substantial evidence. Frank Coluccio Constr., 181 Wn. App. at 35. Evidence is
substantial if it is sufficient in quantity to persuade a fair-minded person of its truth.
Frank Coluccio Constr., 181 Wn. App. at 35. When determining whether substantial
evidence supports the factual findings, we view the evidence and all reasonable
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
INFRASOURCE SERVICES, LLC, No. 83948-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
MANN, J. — Infrasource Services, LLC (Infrasource) was cited by the Department
of Labor and Industries (Department) for violating the Washington Industrial Safety and
Health Act of 1973 (WISHA). Before the Board of Industrial Appeals (Board),
Infrasource argued the violation resulted from unpreventable employee misconduct.
The Board upheld the WISHA violation. Infrasource appeals and asserts the Board
erred in its conclusion that Infrasource failed to prove effective enforcement of its safety
program in practice, not just in theory. We affirm the trial court’s order affirming the
Board’s decision and order. 1
1 Infrasource also assigned error to the Board’s finding that Infrasource knew or by the exercise
of reasonable diligence should have known that Neil Mersman was operating the backhoe on May 10, 2019, while not using seatbelts. But Infrasource’s brief fails to argue this assignment. We will not consider an argument that is not adequately briefed or argued. Cowiche Canyon Conservancy v. Bosley, 118 Wn. 2d 801, 809, 828 P.2d 549 (1992). No. 83948-9-I/2
I.
Infrasource installs residential and commercial gas services for Puget Sound
Energy. In spring 2019, Infrasource had about 400 employees. On May 10, 2019, Neil
Mersman was working for Infrasource at a jobsite in West Seattle. Mersman was
operating a backhoe.
Department Compliance Safety and Health Officer Doug Fordice was performing
a drive-by inspection when he observed Mersman driving a backhoe down Delridge
Way SW—a busy road in West Seattle—without wearing his seatbelt. Fordice stopped,
took photos, and approached Mersman. Fordice asked Mersman why he was not
wearing his seatbelt and Mersman responded that he just forgot.
At the time, the foreperson, Nate Larson, was not at the jobsite. Larson was with
Infrasource’s Kent base superintendent, Alex Bartells, at a different jobsite. When they
learned that Fordice was on-site and had found a violation, Bartells and Larson went to
the West Seattle jobsite.
The Department issued a citation and notice of assessment for a serious
violation of WAC 296-155-615(1)(b) (failure to wear a seat belt). Infrasource appealed
the violation. After an informal conference, the Department issued a corrective notice of
redetermination. The Department affirmed the serious violation but reduced the penalty
from $6,000 to $2,700.
Infrasource appealed to the Board. The case was heard by an industrial appeals
judge (IAJ). At the hearing, various witnesses testified. Before the incident, Mersman
had worked for Infrasource for five years. Mersman testified that while he knew he was
required to wear a seatbelt, he had probably operated a backhoe without wearing a
-2- No. 83948-9-I/3
seatbelt before the May 10th incident. Mersman also testified that Bartells, the Kent
base superintendent, rarely visited jobsites, maybe once every five months. The
Infrasource field safety coordinator, Tom Green, would visit jobsites monthly. These
monthly site visits were directed at discovering safety issues. Observation of a worker
not wearing a seatbelt on a jobsite would be something the safety coordinator would
include in a field safety report. Mersman had never witnessed any field safety
coordinator communicating the need to wear seatbelts during their monthly safety
checks.
Bartells testified that Infrasource has a 52 weeks of Safety Training program 2 for
employees and holds meetings every other week, generally covering two topics per
meeting. These meetings occurred in the morning at the Kent base for 20 to 30
minutes, and were usually performed by Bartells or Green. Mersman testified, however,
that if an employee missed a meeting, they were not required to make it up. Employees
were never disciplined or reprimanded for missing the meetings. Bartells confirmed that
no one at Infrasource was in charge of ensuring that a particular crewmember attend
the trainings. Infrasource offered evidence that Mersman had attended safety trainings
in February 2018 and March 2019 that covered seatbelt use, but Mersman could not
recall the specific trainings.
Bryan Sabari, Vice President of Safety Training and Compliance, testified that
Infrasource has four steps to its discipline program. The first step is a verbal warning or
acknowledgment. The second step includes a verbal and written warning added to the
employee’s file. The third step escalates to time off without pay. Finally, the fourth step
2 In the record, these meetings are also called “Toolbox Talks.” The names are synonymous.
-3- No. 83948-9-I/4
is termination. Infrasource reserves the right to enact any of those steps in any order
depending on the violation, circumstances, and employee’s history. Sabari testified that
Infrasource encourages retraining an employee over discipline.
Sabari testified that safety coordinators conducting random site visits would look
for seatbelt use. Sabari could not recall whether Infrasource had ever received a
citation related to seatbelt use. While Sabari acknowledged that Infrasource would
discipline employees for failure to follow safety policies or procedures, he also testified
that Infrasource doesn’t share disciplinary actions with employees other than the
employee being disciplined.
Fordice testified that when he spoke with Infrasource’s safety manager 3 about
the incident, they said that seatbelt use had been discussed with Mersman in the past.
To Fordice, “that would be all the more reason to keep a foreman on site at a minimum
or a safety manager at a minimum on site to make sure that operators are wearing their
seatbelts.” He also found Infrasource was inconsistent with its disciplinary policy based
on reviewing traffic infractions.
The IAJ issued a proposed decision and order affirming the citation. The Board
granted Infrasource’s petition for review of the proposed decision and order. The Board
agreed with the IAJ and affirmed the citation.
Infrasource appealed the Board’s decision to the superior court, which
determined that the Board’s findings and conclusions were supported by substantial
evidence, and affirmed.
3 Fordice’s inspection worksheet reveals that for his closing conference he spoke to both Larry
Rupe and Henrik Nielsen. Rupe testified that it was just himself and Fordice on the call.
-4- No. 83948-9-I/5
Infrasource appeals.
II.
A.
In a WISHA appeal, we directly review the Board’s decision based on the record
before the agency. Frank Coluccio Constr. Co. v. Dep’t of Lab. & Indus., 181 Wn. App.
25, 35, 329 P.3d 91 (2014). The Board’s findings of fact are conclusive if supported by
substantial evidence. Frank Coluccio Constr., 181 Wn. App. at 35. Evidence is
substantial if it is sufficient in quantity to persuade a fair-minded person of its truth.
Frank Coluccio Constr., 181 Wn. App. at 35. When determining whether substantial
evidence supports the factual findings, we view the evidence and all reasonable
inferences that can be drawn from that evidence in favor of the party that prevailed in
front of the Board—here, the Department. Frank Coluccio Constr., 181 Wn. App. at 35.
If there is substantial evidence to support the findings of fact, we then determine
whether those findings support the Board’s conclusions of law. Frank Coluccio Constr.,
181 Wn. App. at 35.
We do not reweigh the evidence on appeal. Potelco, Inc. v. Dep’t of Lab. &
Indus., 7 Wn. App. 2d 236, 243, 433 P.3d 513 (2018). The possibility of drawing
inconsistent conclusions from the evidence does not prevent an administrative agency’s
findings of fact from being supported by substantial evidence. Aviation W. Corp. v.
Dep’t of Lab. and Indus., 138 Wn.2d 413, 429, 980 P.2d 701 (1999). We do not
substitute our own judgment for that of the agency in factual issues unless authorized
by the Administrative Procedure Act, ch. 34.05 RCW. Aviation W., 138 Wn.2d at 429.
-5- No. 83948-9-I/6
B.
Infrasource argues that substantial evidence does not support the Board’s
determination that Infrasource failed to meet the burden of proving the affirmative
defense of unpreventable employee misconduct. Infrasource contends that it effectively
enforced its safety program. We disagree.
Under RCW 49.17.120(5), there is an affirmative defense of “unpreventable
employee misconduct” that allows an employer to avoid liability upon the following
showing:
(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.
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.” Pro-Active Home Builders, Inc. v. Dep’t of Lab. & Indus., 7 Wn.
App. 2d 10, 20, 465 P.3d 375 (2018) (citing Wash. Cedar & Supply Co., Inc. v.
Dep’t of Lab. & Indus., 119 Wn. App. 906, 913, 83 P.3d 1012 (2003)).
In BD Roofing, Inc. v. Dep’t of Lab. & Indus., the Court of Appeals
concluded that an employer must do more than show the existence of a safety
program to meet the requirements of RCW 49.17.120(5). 139 Wn. App. 98, 113,
161 P.3d 387 (2007). In BD Roofing, an employer offered testimony that its
safety inspectors had the authority to fire employees based on safety concerns
-6- No. 83948-9-I/7
and that there was a general company policy that an employee could face
dismissal for failing to follow its safety protocols. 139 Wn. App. at 112. But the
court determined that without evidence that showed its inspectors had actually
disciplined employees for violating safety rules, the enforcement of its safety
program was merely theoretical. BD Roofing, 139 Wn. App. at 113. The court
held that merely “showing a good paper program does not demonstrate
effectiveness in practice.” BD Roofing, 139 Wn. App. at 113 (citing Brock v. L.E.
Myers Co., High Voltage Div., 818 F.2d 1270, 1277 (6th Cir. 1987)).
The Board found that Infrasource’s enforcement of its safety program was
not effective in practice because (1) the evidence does not establish effective
employee discipline for violating the safety rules and policies, (2) such violations
occurred before May 10, 2019, and (3) no monitoring or enforcement mechanism
was in place to discover, prevent, and correct any violation of the safety rules
and policies because of the lack of both the site foreperson and the
superintendent.
Infrasource argues that its safety program meets the “Exxel standard”
citing In re Exxel Pacific, Inc., No. 96 W182, 1998 WL 718040 (Wash. Bd. of Ind.
Ins. Appeals July 6, 1998). Infrasource’s reliance on Exxel is misplaced. First,
Exxel addressed a citation of a general contractor for failure to establish,
supervise, and enforce a safe and healthful working environment. 1998 WL
718040, at *2. The Board explicitly said, “[o]ur comparisons to the employee
misconduct defense . . . provides us with useful questions to consider in
resolving the larger issue of how a general contractor can fulfill its duty to have a
-7- No. 83948-9-I/8
safety program that is effective in practice.” 1998 WL 718040, at *10. Second,
as the Board noted in this case, in Exxel, the company held weekly safety
meetings with daily reminders. 1998 WL 718040, at *12. In contrast, Infrasource
conducts meetings of its 52 weeks of Safety Training program every other week
and there is no evidence of daily safety briefings.
Finally, Infrasource argues that the Board’s decision conflicts with In re
Shake Specialists, Inc., No. 99 W0528, 2001 WL 292977 (Wash. Bd. of Indus.
Ins. Appeals Jan. 22, 2001). In Shake Specialists, the safety inspector inspected
jobsites every day, on a random basis, and kept logs of his site visits. 2001 WL
292977, at *2. Shake Specialists presented the inspection logs that showed the
company enforced violations of the rules found during these inspections. 2001
WL 292977, at *2. In addition, the safety inspector could not have inspected the
site of the violation because the employees were not scheduled to be at that
jobsite, they went to the jobsite at the direction of a superintendent of a builder.
2001 WL 292977, at *2-3.
The evidence shows that Infrasource failed to meet its burden to show its
safety program was effective in practice as required for the fourth element of
RCW 49.17.120(5). Infrasource presented one weekly violation report which only
contained driving related violations but presented no other written violation
reports of other safety violations. And Bartells testified that these reports would
not contain violations the safety team might identify during safety audits.
Infrasource presented no evidence that employees, other than Mersman,
received incident follow-ups or written or verbal warnings for safety violations.
-8- No. 83948-9-I/9
Mersman admitted that prior violations had occurred but he never received
formal discipline nor had he heard of other employees being disciplined. Finally,
Infrasource asserted that its safety coordinators conduct regular, onsite safety
audits, but did not present evidence about disciplinary actions taken following
these visits and there was no evidence that they occurred more frequently than
monthly.
We conclude that substantial evidence supports the Board’s determination
that Infrasource did not meet the burden of proving the affirmative defense of
unpreventable employee misconduct.
We affirm the trial court’s order affirming the Board’s decision and order.
WE CONCUR:
-9-