IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
INTERWEST CONSTRUCTION, INC., a Washington corporation, No. 88549-9-I
Appellant, DIVISION ONE v. UNPUBLISHED OPINION
WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES,
Respondent.
BIRK, J. — The Department of Labor and Industries (L&I) cited Interwest Construction Inc. for a willful serious violation of WAC 296-155-657(1)(a). On appeal from a Board of Industrial Insurance Appeals (Board) decision and order affirming a corrective notice of redetermination issued by an Industrial Appeals Judge (IAJ), Interwest argues that the Board applied the wrong legal standard for willfulness and that there was not substantial evidence to support a serious or willful violation. Interwest argues the IAJ erred in rejecting Interwest’s unpreventable employee misconduct (UEM) defense, the IAJ erred in excluding L&I’s Division of Occupational Safety and Health compliance manual (DOSH manual), and the Board erred in affirming Interwest’s placement in the Severe Violator Enforcement Program (SVEP). We affirm.
I
In 2021, while working on the Harborview Road and Birch Bay Drive Stormwater Improvements Project (Birch Bay project), dirt from a trench wall fell in and buried Carter up to his neck as he was working in the trench with Interwest foreperson Charles Hornbeck. After an investigation, L&I cited Interwest for a willful serious violation for failing to protect employees in an excavation from a cave-in by not employing an adequate protective system pursuant to WAC 296- 155-657 and fined Interwest $48,000. Interwest appealed, and an IAJ conducted the review hearing.
A
In opening statements, Interwest argued there was no evidence to show the trench was greater than four feet deep to support a willfulness finding. Even if the court found willfulness, it argued it should be able to assert the UEM defense. Regarding the SVEP, it argued referral was inappropriate because of the erroneous willful finding as well as a finding of Interwest having committed a repeat serious violation.
During the hearing, Interwest moved to admit a DOSH manual to show what L&I is required to prove to establish willfulness. The court excluded the manual, concluding Interwest failed to cite authority showing the DOSH manual standards were the legal standards for willfulness.
1
L&I presented testimony by three individuals: Carter, Hornbeck, and L&I Safety and Health Compliance Officer Joel Morder.
3
Carter testified that he was five feet ten inches tall and on the day he was injured, the trench he was working in was “roughly a foot to half a foot” above his head. He testified that there was no manhole box, trench shield, or trench support system in the trench and that he got into the trench because Hornbeck said, “You and me will hit this in really quick.” Carter testified he was in the trench for about five to ten minutes when the trench collapsed on him and buried him up to his neck. After the collapse Carter was taken to a hospital, where he received treatment in the intensive care unit for broken ribs, a collapsed lung, a bruised and swollen heart, and a swollen heart valve. On cross-examination, Carter testified he had raised a complaint about the width of the trench about a week before the trench cave-in.
Hornbeck testified that the day of Carter’s injury, he was the “competent person”1 and foreperson on site for the job and had received training explaining that a trench collapse could be deadly. When asked how deep he remembered the trench being, he responded it was four feet or less. He testified he was working in the trench when the trench collapsed. On the topic of safety, he testified that Carter and he were the on-site safety people for the day because Carter was the “lead man” and lead pipe layer and that all employees at Interwest have the ability to be involved with safety. Hornbeck testified that the job had site-specific safety meetings every Monday before they began work, and that Carter participated in
1 The IAJ’s order defined “competent person” as an employer designation
indicating a person who is an expert in a high hazard activity and who has taken specialized classes to certify them as experts in safety in that activity.
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those safety meetings. He also testified to conducting trench inspections every day.
Morder testified he inspected the Birch Bay project two days after the incident. He conducted an opening conference with Safety Director Dave Hamacher, who reported that he was aware of a cave-in that had occurred when Interwest was installing a storm pipe. Morder tried to inspect the location of the accident, but the trench had been covered and it was difficult to investigate because he could not really see what the actual condition of the trench was. He also spoke with Hornbeck, and testified Hornbeck said he believed the trench was four feet deep. Morder testified that Hornbeck told him shoring was not being used at the time Carter was injured.
2
Interwest presented testimony by two Interwest workers: Civil Superintendent Britton Lukes and Hamacher.
Lukes testified he was the superintendent for the Birch Bay project, and that for the project, he had trench shoring equipment such as trench boxes, manhole boxes, and speed shoring. According to Lukes, Interwest has a safety program that includes a Safety Handbook, an accident prevention program, and a site- specific safety plan, all of which are reviewed with employees. In addition, Lukes testified Hamacher sends out e-mails about national safety topics and that they conduct weekly safety meetings as well as annual safety training. He testified there were no prior violations or incidents regarding shoring at the Birch Bay project site. According to Lukes the only safety complaint he was aware of for the
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Birch Bay project was a complaint from Carter about wanting wider trench box spreaders, which to Lukes was not a safety issue.
Lukes testified that upon discovering a water line, Interwest worked with Whatcom County to develop a new plan that allowed the pipe to go over the water line, and this new plan changed the depth of the trench. Lukes was not there at the time of the cave-in and testified that he knew the plans very well but did not know exactly how deep the trench was that day.
Hamacher testified to the extent of Interwest’s safety program. He also described one instance where a jackhammer bit caused something to penetrate an employee’s leg, which required stitches, and that the company response was to change policy and order new parts to “minimize flying and high-hazard impacts.” He discussed his practice if he arrived at a job site where employees were involved in a hazardous act or had an unsafe condition on-site, he would remove them from the hazardous condition and have a conversation with them. He testified that Interwest’s progressive discipline policy—write ups, verbal warning, unpaid time off—varied case-by-case and was supplemented with coaching, mentoring, and a training component. He testified that after the trench cave-in, Hornbeck and the crew received one unpaid day off work and Hornbeck had a meeting with the general superintendent, operations, and the ownership of the company.
Hamacher testified the 2019 citation Interwest received was for a large open-cut excavation. He testified that the hazards involved in an open-cut excavation include soil sloughing, which would push a person out of the way as opposed to soil in a narrow trench pinning the individual against a wall.
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Hamacher believed Hornbeck was fully aware of company policy and Washington Administrative Code regulations at the time of the cave-in.
3
The IAJ found L&I met its burden to establish a serious violation, but not a willful violation. The IAJ concluded that because the violation was in an open roadway and Hornbeck knew of it, Interwest had knowledge. The IAJ concluded a willful finding was not warranted because Interwest had a robust safety program.
Both L&I and Interwest appealed to the Board.
B
The Board affirmed the IAJ’s order on the serious violation. It reversed the dismissal of the willful violation and reinstated it, reassessing the penalty at the original $48,000. The Board found that Hornbeck entered a trench four feet or deeper without shoring with Carter and exposed him to a serious cave-in hazard, which culminated in Carter requiring hospitalization. The Board found that because Hornbeck was a competent person he had the knowledge, awareness, and training to ascertain the hazard risk from the trench and that he should not have allowed Carter to enter it. The Board found that a substantial probability existed that Carter was exposed to a cave-in hazard and would be seriously injured, which he ultimately was. It concluded Interwest knew or should have known with the exercise of reasonable diligence of the presence of the violation given the nature of the work and the conspicuousness of the site of the violation. It determined this evidence supported a willful violation and concluded Interwest was precluded from a UEM defense because Hornbeck was a competent person
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who had experience with trenching. In its discussion section, the Board also found Carter had raised safety concerns about the size of the trench before the cave-in and that Hornbeck determined not to use shoring in the trench because it would have required more work. It also determined Interwest had constructive knowledge of the condition because of its location in an open roadway, and that Interwest’s safety program was ineffective because Hornbeck as foreperson made the decision not to use shoring. It also determined L&I had cited Interwest for the same type of violation before. The Board did not discuss the exclusion of the DOSH manual.
Interwest appealed to the superior court, which affirmed the Board’s order.
Interwest appeals to this court.
II
Interwest argues the Board erred in affirming the willful and serious violation classifications because the Board applied the wrong legal standard and substantial evidence does not support the Board’s findings. We disagree.
“The legislature enacted the Washington Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW, ‘to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington.’ ” Erection Co. v. Dep’t of Lab. & Indus., 160 Wn. App. 194, 201, 248 P.3d 1085 (2011) (quoting RCW 49.17.010). L&I is “charged with promulgating regulations under WISHA, RCW 49.17.040, and employers are responsible for complying with these regulations in their oversight of all employees.” Id. When L&I cites an employer for a WISHA violation, L&I bears the
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burden of proving the violation occurred. Id. “We construe WISHA statutes and regulations liberally to achieve their purpose of providing safe working conditions for workers in Washington.” Frank Coluccio Constr. Co. v. Dep’t of Lab. & Indus., 181 Wn. App. 25, 36, 329 P.3d 91 (2014). We may look to federal decisions under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, when interpreting WISHA. Seattle Bulk Shipping, Inc. v. Dep’t of Lab. & Indus., 25 Wn. App. 2d 762, 769, 524 P.3d 733 (2023).
We sit in the same position as the superior court, and our review is limited to the record made available to the Board. Dep’t of Lab. & Indus. v. Lyons Enters., Inc., 185 Wn.2d 721, 731, 374 P.3d 1097 (2016). We review the Board’s findings of fact using the substantial evidence standard, under which there must be evidence sufficient to persuade a fair-minded, rational person of the truth of the matter. Id. We view the evidence and reasonable inferences in the light most favorable to the party who prevailed before the Board. Frank Coluccio Const. Co, 181 Wn. App. at 35. We may overturn an agency’s factual findings only if they are clearly erroneous and we are “ ‘definitely and firmly convinced that a mistake has been made.’ ” Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568, 588, 90 P.3d 659 (2004) (quoting Buechel v. Dep’t of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994)). “We do not weigh the credibility of witnesses or substitute our judgment” for the Board’s judgment regarding findings of fact. Id.
“If there is substantial evidence to support the findings, we then determine whether the findings support the conclusions of law.” Frank Coluccio Const., 181 Wn. App. at 35. “We review questions of law de novo and, in doing so, grant the
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agency interpretation substantial weight.” Lyons Enters., 185 Wn.2d at 731-32. “We may affirm on any basis supported by the record whether or not the argument was made below.” Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233 (2016).
A
Interwest argues the Board did not apply the correct burden of proof to L&I’s evidence, and that there is not substantial evidence to support a finding the trench was at least four feet deep to support a serious violation or exposure. We disagree.
1
WAC 296-155-657(1)(a) provides that an employer must provide an adequate protective system in an excavation except when an excavation is made entirely of stable rock, an excavation is less than four feet in depth and examination on the ground by a competent person provides no indication of a potential cave- in.
A serious violation exists 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, operation, 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(7). To establish a prima facie case of a serious WISHA violation, L&I must prove that
“(1) the cited standard applies, (2) the employer did not meet the standard, (3) employees were exposed to, or had access to, the violative condition, (4) the employer knew or, through the exercise of
10
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.”
Cent. Steel, Inc. v. Dep’t of Lab. & Indus., 20 Wn. App. 2d 11, 19, 498 P.3d 990 (2021) (quoting Shimmick Constr. Co. v. Dep’t of Lab. & Indus., 12 Wn. App 2d 770, 779, 460 P.3d 192 (2020)). “When an alleged violation is designated ‘serious,’ [L&I] bears the burden of proving not only the existence of the violation itself, but also the existence of those additional elements of a ‘serious’ violation.” Pro-Active Home Builders, Inc. v. Dep’t of Lab. & Indus., 7 Wn. App. 2d 10, 17, 465 P.3d 375 (2018).
Here, Carter testified he is about five feet ten inches tall and that the trench was about a half foot to foot above his head. Hornbeck testified he would say the trench depth was about four feet or less. Lukes testified he understood the dimensions of the trench, and, while he testified the trench depth was raised to avoid a water line, he testified he did not actually know the depth. To the extent Interwest questioned Carter about the trench depth, Carter supplied the trench depth according to the plans was about five and a half feet. There is substantial evidence to support the Board’s finding the trench was more than four feet deep.
2
Interwest argues the Board erred in concluding Interwest knew of the violation because it misapplied the plain view doctrine and because it attributed Hornbeck’s knowledge as foreperson to Interwest. We disagree.
Regarding an employer’s knowledge, “ ‘[r]easonable diligence involves several factors, including an employer’s obligation to inspect the work area, to
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anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence.’ ” Erection Co., 160 Wn. App. at 206-07 (quoting Kokosing Constr. Co. v. Occupational Safety & Hazard Rev. Comm’n, 232 Fed. Appx. 510, 512 (6th Cir. 2007)). “An employer’s knowledge can be actual or constructive, and common knowledge can be used to establish that a hazard is recognized.” Pro- Active Home Builders, 7 Wn. App. 2d at 18. “Constructive knowledge may be proved through evidence that a violation was in plain view.” Potelco, Inc. v. Dep’t of Lab. & Indus., 194 Wn. App. 428, 439, 377 P.3d 251 (2016) (hereinafter Potelco I). “Such knowledge is established where the violation was ‘readily observable or in a conspicuous location in the area of the employer’s crews.’ ” Id. at 439-40 (quoting Erection Co., 160 Wn. App. at 207). “[W]hen a supervisor has actual or constructive knowledge of a safety violation, such knowledge can be imputed to the employer.” Id. at 440.
Interwest contends that an open, unshored trench is not readily observable as a violation because trenches without employees in them or under four feet do not need to be shored. Here, Carter and Hornbeck both worked in the trench, which was visibly over Carter’s head. There is substantial evidence to support a finding Interwest had constructive knowledge of the violative condition.
There is also substantial evidence to support a finding Interwest had actual knowledge. Hornbeck testified he would say the trench is about four feet or less. Lukes testified Hornbeck was the designated competent person for the Birch Bay project. Hamacher and Hornbeck testified Hornbeck was a competent person through specific training related to trenching and excavation. Hornbeck, as the
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designated competent person in charge of safety at the site that day, knew the trench depth was about four feet and did not exercise reasonable diligence in ensuring the trench was below four feet. We cannot say the Board erred in concluding Interwest had knowledge the trench was at least four feet deep.
B
Interwest argues the Board, using the incorrect legal standard, erred in concluding Interwest committed a willful violation because Interwest knew or should have known of the violative condition. Interwest argues L&I had to show Interwest’s conduct reflected an “intentional disregard or plain indifference to shoring requirements in trench excavation, not merely that [Interwest] could have or should have known of a hazard,” even if that hazard was obvious. Interwest challenges the Board’s conclusion that Interwest’s 2019 citation was similar to the present citation and supports a finding of indifference, which Interwest argues the Board concluded supported willfulness. Interwest argues the IAJ erred in excluding the DOSH manual because it was relevant to prove the standard of willfulness.
1
L&I may assess enhanced penalties when an employer willfully or repeatedly violates a safety or health standard promulgated under the authority of WISHA. RCW 49.17.180(1). A willful violation requires a finding that an act was done voluntarily with either “an intentional disregard of, or plain indifference to requirements of the statute.” Elder Demolition, Inc. v. Dep’t of Lab. & Indus., 149 Wn. App. 799, 810, 207 P.3d 453 (2009). “Willful violations carry enhanced
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penalties because of the ‘particularly improper state of mind with which the standard is violated.’ ” Seattle Bulk Shipping, 25 Wn. App. 2d at 777 (internal quotation marks omitted) (quoting Elder Demolition, 149 Wn. App. at 808). “However, an employer does not need to harbor malicious motives or possess a specific intent to commit a willful violation.” Id. Actual knowledge of the standards is not required; “ ‘[i]nstead, a plain indifference to safety requirements is sufficient by itself to establish a willful violation.’ ” Id. (quoting Elder Demolition, 149 Wn. App. at 808). For example, “ ‘an act may be willful if the offender shows indifference to the rules; [they] need not be consciously aware that the conduct is forbidden at the time [they] perform[] it, but [their] state of mind must be such that, if [they] were informed of the rule, [they] would not care.’ ” Elder Demolition, 149 Wn. App. at 808 (quoting Brock v. Morello Bros. Constr., Inc., 809 F.2d 161, 164 (1st Cir. 1987)). However, “[a] ‘good faith, reasonable belief by an employer that its conduct conformed to the law negates a finding of willfulness.’ ” Dayton Tire v. Sec’y of Lab., 671 F.3d 1249, 1255 (D.C. Cir. 2012) (quoting A.J. McNulty & Co., Inc. v. Sec’y of Lab., 283 F.3d 328, 338 (D.C. Cir. 2002)). This is because a showing of good faith does not demonstrate an “indifference to the law.” See Brock, 809 F.2d at 164.
Here, there is substantial evidence to support the Board’s finding that Interwest willfully violated WAC 296-155-657(1)(a). Although Hornbeck testified he believed the trench did not require shoring, Hornbeck testified he would say the trench depth was around four feet. Carter testified that the trench was “roughly a foot to half a foot above [his] head to where [he] was standing.” Taken together, it
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is reasonable to infer that the trench was visibly at least four feet in depth. In addition, Hornbeck testified he was familiar with codes about shoring depth and knew that trenches four feet or deeper require shoring because of the danger they posed. Carter testified Hornbeck told him, “[y]ou and me will hit this in real quick,” and they both entered the trench. As a competent person, Hornbeck knew the codes about trench depth and shoring, decided not to shore it despite knowing the trench was about four feet deep, and directed an employee to get into the trench where the employee was injured. There was substantial evidence to support the Board’s conclusion Hornbeck deliberately disregarded the shoring requirements.
Interwest and Amici argue the Board disregarded Interwest’s safety program when making its willfulness determination, discounting Interwest’s good faith compliance, which should negate a finding of plain indifference. In Dayton Tire, the District of Columbia Circuit Court identified two cases where the court upheld a plain indifference finding because both companies had been repeatedly warned they were violating safety standards and the companies failed to make any effort to address those concerns. 671 F.3d at 1256 (citing Am. Wrecking Corp., v. Sec’y of Lab., 351 F.3d 1254, 1261 (D.C. Cir. 2003); AJP Constr., Inc. v. Sec’y of Lab., 357 F.3d 70, 74 (D.C. Cir. 2004)). Here, however, because there is substantial evidence to support a deliberate disregard finding, we cannot say the Board erred in finding willfulness.
2
Interwest argues that its 2019 citation does not support an inference Interwest was plainly indifferent because it is different from the current citation and,
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even if it were factually similar, repeatedly violating a condition alone does not rise to the level of plain indifference. To establish a repeat violation under RCW 49.17.180(1), L&I is required to show a substantially similar hazard, which relies on the same type of hazard and not the same underlying conduct. Erection Co., 160 Wn. App. at 214. Here, there was substantial evidence to support Interwest’s 2019 citation was substantially similar to the 2021 citation. The 2019 citation was for an excavation hazard under the same code cited in the 2021 citation. Hamacher testified the danger from an excavation versus a trench is the same: shifting dirt. Because both citations were for a risk of shifting dirt, the citations were for substantially similar hazards. In addition, the Board concluded Hornbeck’s behavior and the previous citation in conjunction supported a finding of willfulness.
We conclude the Board did not solely rely on the previous citation and there was substantial evidence to support that the previous citation was for a substantially similar hazard.
3
Interwest argues the Board erred in affirming the IAJ’s exclusion of the DOSH manual as irrelevant despite being “plainly material to the applicable standards and Department’s own interpretation,” and that this exclusion was not harmless. We disagree.
“We review an administrative law judge’s evidentiary decisions for abuse of discretion.” King County Pub. Hosp. Dist. No. 2 v. Dep’t of Health, 178 Wn.2d 363, 372, 309 P.3d 416 (2013). Administrative law judges “have considerable discretion to determine the scope of admissible evidence.” Id. at 373. An administrative law
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judge “may exclude evidence that is irrelevant, immaterial, or unduly repetitious.” RCW 34.05.452(1).
Interwest suggests the manual is relevant to show that L&I’s interpretation of willful during the current appeal’s process differs from that contained within the manual. However, Interwest supplies no authority that suggests the Board is bound to adopt L&I’s interpretation of willful as identified in its manual. In addition, the DOSH manual states, “The contents of this manual are not enforceable by any person or entity against [L&I] or the state of Washington.” The Board did not abuse its discretion in affirming exclusion of the DOSH manual.
4
Interwest argues the Board erred in finding that Interwest failed to heed Carter’s complaints about safety and that Hornbeck declined to use shoring in the trench because it would have been more work.
Carter testified about complaints related to the width of the trench, and he made them about a week before the cave-in. Carter never testified that the narrowness of the trench was a hazard, and he testified that, in the section he complained about, Interwest was using 30 inch spreaders as shoring.
Hornbeck testified he did not think using a trench box or manhole box for the trench was necessary. He testified his determination to not use shoring was not guided by its inability to fit in a certain location. Lukes testified the narrowness of the trench was to keep in line with the project contract and to avoid risking disturbing potential Native American artifacts. Although the record does not support a finding that Carter’s complaints were about shoring or that shoring was
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not used because it would have been more work, we may still affirm if the Board’s conclusions of law are justified by findings of fact supported by substantial evidence. Little v. Harie-Tynes Co., Inc., 35 Wn. App. 2d 638, 646, 574 P.3d 1066 (2025), review denied, 6 Wn.3d 1007, 589 P.3d 785 (2026).
C
Interwest argues the Board erred in rejecting the UEM defense because Hornbeck’s knowledge and role do not establish supervisory authority or foreseeability. However, we cannot say that the Board erred in deciding that Interwest did not meet its burden of proof to show that its safety program was effective.
“Once L&I has established a prima facie case of a WISHA violation, the burden shifts to the employer ‘who can avoid a finding against it if it can establish that [UEM] was the actual cause of the violation.’ ” Potelco, Inc., v. Dep’t of Lab. & Indus., 7 Wn. App. 2d 236, 248, 433 P.3d 513 (2018) (hereinafter Potelco II) (internal quotation marks omitted) (quoting J.E. Dunn Nw., Inc. v. Dep’t of Lab. & Indus., 139 Wn. App. 35, 46, 156 P.3d 250 (2007)). The legislature codified the UEM defense at RCW 49.17.120(5)(a):
No citation may be issued under this section if there is [UEM] that led to the violation, but the employer must show the existence of:
(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.
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“ ‘[A]n employer may defend the citation on the ground that, due to the existence of a thorough and adequate safety program[,] which is communicated and enforced as written, the conduct of its employee(s) in violating that policy was idiosyncratic.’ ” Central Steel, 20 Wn. App. 2d at 20 (second alteration in original) (quoting BD Roofing, Inc. v. Dep’t of Lab. & Indus., 139 Wn. App. 98, 113, 161 P.3d 387 (2007)). “An employer asserting the defense must prove each element. Potelco I, 194 Wn. App. at 435. “The ‘evidence must support the employer’s assertion that the employees’ misconduct was an isolated occurrence and was not foreseeable.’ ” Id. (quoting BD Roofing, 139 Wn. App. at 111).
“When a supervisor is involved in a violation, ‘the proof of UEM 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 [their] supervision,’ ” Id. at 437 (quoting Sec’y of Lab. 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 [foreperson] which results in dangerous risks to employees under [their] supervision, such fact raises an inference of lax enforcement and/or communication of the employer’s safety policy.’ ” Id. (first alteration in original) (quoting Brock v. L.E. Meyers Co., 818 F.2d 1270, 1277 (6th cir. 1987)). “Supervisor participation in or failure to enforce a safety rule weighs against the defense of UEM,” but it does not foreclose it. Id.
“ ‘[T]he existence of prior violations does not absolutely bar use of the [UEM]
defense,’ but it is ‘evidence that the employee conduct was foreseeable and preventable.’ ” Potelco II, 7 Wn. App. 2d at 249 (quoting Wash. Cedar & Supply
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Co. v. Dep’t of Lab. & Indus., 119 Wn. App. 906, 913, 83 P.3d 1012 (2003)). “Prior violations may ‘provide sufficient evidence to support the [Board’s] conclusion’ that the defense did not apply because they show the violation was foreseeable.” Id. at 249-50 (quoting Wash. Cedar, 119 Wn. App. at 913).
“It is not enough for an employer to show the existence of ‘a good paper program.’ ” Potelco I, 194 Wn. App. at 437 (quoting BD Roofing, 139 Wn. App. at 113). “[T]he employer must prove the ‘[e]ffective enforcement of its safety program . . . in practice and not just in theory.’ ” Id. (alterations in original) (internal quotation marks omitted) (quoting BD Roofing, 139 Wn. App. at 113).
Here, Interwest had previously been cited under WAC 296-155-657 for an excavation cave-in in 2019. Therefore, it was foreseeable that Interwest employees might not follow the proper shoring regulations when working in excavations such as trenches. Hamacher testified Interwest had an extensive safety program and took corrective action one time by buying the correct tool in response to an employee injuring himself with a jackhammer because of using an improper tool. But Lukes and Hamacher did not testify Interwest followed up on safety training to make sure staff knew which tools to use or that it disciplined those involved to make sure it did not happen again, and Interwest did not present evidence it disciplined those involved with the 2019 citation. There was substantial evidence to support the Board’s conclusion that Interwest did not have an effective safety program.
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D
Interwest argues the Board erred in affirming placement of Interwest in the SVEP because Interwest’s previous citation was not a substantially similar hazard to its current citation. Because Interwest argues the criteria L&I uses in determining who belongs in the SVEP is the same as the criteria for willfulness and repeated violation, and substantial evidence supports both, we conclude the Board did not err.
III
We conclude the Board did not err in concluding Interwest committed a willful, serious violation.
Affirmed.
WE CONCUR: