Performance Contracting Inc. V. State Department Of Labor And Industries

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PERFORMANCE CONTRACTING, No. 88370-4-I INC, DIVISION ONE Appellant, v. UNPUBLISHED OPINION

DEPARTMENT OF LABOR AND INDUSTRIES,

Respondent.

FELDMAN, J. — Performance Contracting, Inc. (PCI) appeals from a decision

of the Board of Industrial Insurance Appeals (Board) affirming a citation issued by

the Department of Labor and Industries (Department) for three serious violations

of applicable worksite safety regulations. Because the Board’s findings are

supported by substantial evidence and PCI fails to establish an entitlement to relief,

we affirm.

I

On September 20, 2021, Bryan Phillips, an employee of PCI, was

fireproofing the ceiling of the fifth floor of the Washington State Convention Center

Addition (WSCCA) project, a 1.5 million square-foot building with thirteen floors.

He was operating an 11,000-pound motorized work platform, known as a “scissor

lift,” which elevated him to approximately 27 feet above the floor to perform his No. 88370-4-I

work. As Phillips maneuvered the lift, one of its wheels drove over a 13-inch by

48-inch hole in the concrete floor. The hole was covered by a ¾-inch thick piece

of plywood that was coated with concrete slurry, fireproofing materials, and dust.

The cover was designed to prevent concrete from falling through the hole to the

floor below when the concrete flooring was poured and was not sufficient to

support the weight of the scissor lift. Consequently, the scissor lift toppled over

and both Phillips and the lift fell from the fifth floor of the WSCCA project to the

street below. Phillips died as a result of the fall.

The Department, PCI, and the project’s general contractor met at the site

later that day to conduct an inspection. They found six rectangular holes in the

floor. Following the investigation, the Department issued a citation and notice of

assessment citing PCI with the following alleged violations:

Violation 1 Item 1a Violation Type: Serious WAC 296-869-60030(1) The employer did not ensure the operator of an elevated work platform kept a safe distance from holes.

Violation 1 Item 1b Violation Type: Serious WAC 296-880-40015(1)(b) The employer did not ensure hole covers located at the Washington Convention Center, 1000 Olive Way, Seattle, WA 98101 could support twice the weight of equipment that may be imposed on the cover at any one time.

Violation 1 Item 2 Violation Type: Serious WAC 296-155-110(2) The employer did not develop an Accident Prevention Program that is tailored to the needs of their particular workplace or operation and to the types of hazards involved.

The Department’s penalties for these alleged violations totaled $13,000: $7,000

for items 1a and 1b and $6,000 for item 2.

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PCI appealed the citation to the Board. Following a three-day hearing, an

Industrial Appeals Judge issued a proposed decision and order affirming the

Department’s citation. The decision includes detailed findings of fact and

conclusions of law. Relevant here, conclusions of law 2, 3, and 4 state as follows:

2. On September 20, 2021, PCI committed a serious violation of WAC 296-869-60030(1), within the meaning of RCW 49.17.180(2) as stated in Item No. 1-1(a) of Citation and Notice No. 317965771. The penalty is $7,000.

3. On September 20, 2021, PCI committed a serious violation of WAC 296-880-40015(1)(b) within the meaning of RCW 49.17.180(2) as stated in Item No. 1-1(b) of Citation and Notice No. 317965771. The penalty is included in Item No. 1-1b.

4. On September 20, 2021, PCI committed a serious violation of WAC 296-869-60030(1), within the meaning of RCW 49.17.180(2) as stated in Item No. 1-2 of Citation and Notice No. 317965771. The penalty is $6,000.

PCI then filed a petition for review to the Board. In its decision and order, the Board

ruled:

After review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law. The Proposed Decision and Order’s Findings of Fact and Conclusions of Law are incorporated by reference and adopted as part of this order.

PCI then appealed to the superior court, which affirmed the Board’s decision and

order. This timely appeal followed.

II

PCI broadly argues the Board’s decision is erroneous. Below, we briefly

set forth the legal principles that govern our review of the decision and then

address, and reject, each of PCI’s arguments.

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A

The Washington State Constitution mandates protection of workers at

construction sites. CONST. art. II, § 35. To that end, article II, section 35 provides,

“The legislature shall pass necessary laws for the protection of persons working in

mines, factories and other employments dangerous to life or deleterious to health;

and fix pains and penalties for the enforcement of the same.” In accordance with

that constitutional mandate, the Washington legislature enacted the Washington

Industrial Safety and Health Act (WISHA) to “assure, insofar as may reasonably

be possible, safe and healthful working conditions for every man and woman

working in the state of Washington.” RCW 49.17.010.. The legislature has also

delegated broad authority to the Department to adopt regulations to meet the

general safety principles set forth in WISHA. RCW 49.17.040. Under WISHA,

employers have a specific duty to “comply with the rules, regulations, and orders

promulgated” by the Department. RCW 49.17.060(2); J.E. Dunn Nw., Inc. v. Dep’t

of Labor & Indus., 139 Wn. App. 35, 48, 156 P.3d 250 (2007).

To prove a serious violation of WISHA, the Department must establish: “(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.” Ostrom Mushroom

Farm Co. v. Washington State Dep’t of Labor & Indus., 13 Wn. App. 2d 262, 272,

463 P.3d 149 (2020). The Department “must establish each element by a

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preponderance of the evidence.” Centimark Corp. v. Dep’t of Labor & Indus., 129

Wn. App. 368, 378, 119 P.3d 865 (2005).

Although PCI assigns error to numerous findings, it primarily contests

whether the record establishes that it knew or through the exercise of reasonable

diligence could have known of the violative condition—the fourth element of a

WISHA violation. The Board may prove that element with evidence showing actual

or constructive knowledge of the violative condition. Pro-Active Home Builders,

Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 10, 18, 465 P.3d 375 (2018). “In

general, constructive knowledge is established where the employer in the ‘exercise

of reasonable diligence’ could have become aware of the condition.” Id. (quoting

former RCW 49.17.180(6) (2018)). “‘Reasonable diligence’ includes the obligation

of an employer to inspect the work site, anticipate hazards that employees 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) (quoting Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 206-

07, 248 P.3d 1085 (2011). Constructive knowledge may be established 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.

Pro-Active Home Builders, 7 Wn. App. 2d at 18.

While PCI also assigns error to the superior court’s findings in its decision

affirming the Board’s decision and order, 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.” Pro-Active Home Builders, 7 Wn. App. 2d at 16. The Board’s findings of

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fact are conclusive if supported by substantial evidence. Ostrom Mushroom Farm,

13 Wn. App. 2d at 271. Evidence is substantial if it is sufficient in quantity to

persuade a fair-minded person of its truth. Id. We view the evidence and all

reasonable inferences that can be drawn from that evidence in favor of the

prevailing party, here the Department. Id. We do not reweigh the evidence on

appeal. Id. If there is substantial evidence to support the findings of fact, “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.” Pro-Active Home Builders, 7 Wn. App. 2d at 16. We also give

substantial weight to the Department’s interpretation of statutes and regulations

within its area of expertise and will uphold that interpretation if doing so does not

contradict the legislative intent. Ostrom Mushroom Farm, 13 Wn. App. 2d at 272.

B

In conclusion of law 2, the Board affirmed the Department’s determination

that PCI had violated WAC 296-869-60030(1) by failing to ensure its operator of

an elevated work platform kept a safe distance from holes. PCI argues some of

the Board’s findings relating to this violation—specifically, findings of fact 4, 10, 13,

14, and 15—are not supported by substantial evidence and therefore do not

support conclusion of law 2. We address each challenged finding in turn.

Finding of fact 4 states “PCI received and utilized the fifth-floor slab plans

depicting six rectangular holes along the west side of the fifth floor. PCI had access

to other plans depicting the fifth-floor, west-side of the fifth floor, showing the same

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six rectangular holes.” Substantial evidence supports this finding. Documents

submitted to the Department during its investigation show that PCI received

drawings of the site depicting the planned holes. The record also shows PCI

received flooring plans from the concrete flooring subcontractor on the project

depicting six rectangular holes visible on the left (west) edge of the plan, each of

which is labeled as an “opening.” Moreover, PCI’s branch safety supervisor

testified that he reviewed diagrams, drawings, and blueprints and used them as

part of his job. This evidence is sufficient in quantity to persuade a fair-minded

person that PCI had access to and utilized plans depicting the holes, and thus the

Board’s finding is supported by substantial evidence.

PCI claims the Board’s finding is not supported by substantial evidence

because its fireproofer employees did not use flooring plans to conduct their

fireproofing work on ceilings. This argument is not persuasive. Such a claim, even

if true, is of no relevance to whether PCI received and utilized plans depicting the

hazards, which could have, in the exercise of reasonable diligence, made it aware

of the condition. PCI also takes issue with evidence relied on by the Board by

asserting it was “not even on the emails cited in the Board’s decision.” But the

record reflects that the message regarding the existence of fifth-floor holes was

sent to PCI employees Kenneth Wolfe and J.D. Whiteside. Thus, substantial

evidence indicates PCI received and utilized plans and other materials depicting

the holes, which in turn supports the finding of constructive knowledge of the

violative condition.

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Relatedly, PCI argues that despite having received documents showing the

holes months before the accident, it was the general contractor and flooring sub-

contractor’s responsibility to provide notice of uncorrected hole hazards at the site

and that the general contractor should not have “released” the fifth floor to PCI if it

was not safe. This argument fails because PCI cannot contract away its obligation

to keep its employees safe. Both subcontractors and general contractors have a

“duty to comply with or ensure compliance with WISHA and its regulations.” Stute

v. P.B.M.C., Inc., 114 Wn.2d 454, 463, 788 P.2d 545 (1990); RCW 49.17.060(2).

The duty of a general contractor does not lessen the duty of a subcontractor

because “[a]n employer has a positive, nondelegable duty to furnish [its]

employees with a reasonably safe place to work.” Guy v. Nw. Bible Coll., 64 Wn.2d

116, 118, 390 P.2d 708 (1964). As confirmed recently in Vargas v. Inland Wash.,

LLC, “multiple entities—jobsite owners, general contractors, subcontractors—may

concurrently owe independent yet overlapping duties to maintain a safe

workplace.” 194 Wn.2d 720, 739, 452 P.3d 1205 (2019). Contrary to PCI’s

argument, substantial evidence supports finding of fact 4.

Finding of fact 10 states “on September 17, 2021, PCI monitored fireproof

work progress on the fourth-floor ceiling, and the fifth-floor rectangular hole covers

were visible.” PCI presents no argument as to how this finding is not supported by

substantial evidence. Because “it is incumbent on counsel to present the court

with argument as to why specific findings . . . are not supported by the evidence

and to cite to the record to support that argument,” In re Estate of Lint, 135 Wn.2d

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518, 532, 957 P.2d 755 (1998) (citing RAP 10.3), we treat this unchallenged finding

as a verity on appeal. Frank Coluccio Const. Co. v. Dep’t of Labor & Indus., 181

Wn. App. 25, 35, 329 P.3d 91 (2014). In any case, substantial evidence supports

the challenged finding, including PCI’s photographs of the fourth floor ceiling three

days before the incident showing the underside of the plywood covering the holes

on the fifth floor. This evidence supports the Board’s determination that PCI had

constructive knowledge of the hazard because it could have known of the violative

condition in the exercise of reasonable diligence.

Finding of fact 13 provides, “The pre-task plan in effect on September 20,

2021, did not require inspecting for potentially concealed hole hazards, and the

pre-task plan did not require inspecting for holes.” Substantial evidence supports

this finding. PCI employees used pre-task plans to check an area for potential

hazards prior to beginning their work each day. The pre-task plans PCI used at

the WSCCA project in the weeks leading up to Phillips’ death included questions

designed to evaluate the floor and safety of hole coverings at the worksite, such

as, “Is the surface of sufficient strength to withstand all floor/ground load forces?”

and “Are there drop-offs or holes, including those concealed by water, ice, mud,

etc?” But the record shows that the pre-task plan changed days before Phillips’

death. On the day of the accident, it no longer included the above questions in the

“evaluating work area” section of the plan and did not require employees to look

for holes, concealed or otherwise, before beginning work each day. Thus,

substantial evidence supports the challenged finding. Equally important, the

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previous iteration of the pre-task plan also supports the Board’s determination that

PCI, had it exercised reasonable diligence, could have become aware of the

Finding of fact 14 states, “On September 20, 2021, at about noon, one of

the six rectangular holes covers [was] depressed, damaged, and readily visible as

a hole cover.” Substantial evidence supports this finding. As the Board noted, a

PCI vice president testified that at 9:11 am on the day Phillips died, materials were

situated on top of an area where a depressed hole cover was later discovered,

thus making it undiscoverable as of the beginning of the day. But Phillips did not

begin working on the fifth floor until noon. Importantly, Phillips’ foreman testified

that when he inspected the fifth floor with Phillips around noon—the specific time

referenced in finding of fact 14—he did not observe any materials obstructing the

area where the depressed hole cover was later found, indicating any materials had

been moved since earlier in the morning. A PCI photograph of the project at 1:13

pm, about 45 minutes before Phillips’ death, also shows that any material that had

been covering the hole in the morning had been removed. This, too, supports the

Board’s finding that one of the six rectangular hole covers was depressed,

damaged, and readily visible as a hole cover.

PCI challenges the Board’s finding by claiming that the hole at issue was

“45 feet away from where PCI was working” and no one testified that they noticed

it before the incident. But actual knowledge of the hazard is not required. Had

PCI exercised reasonable diligence to inspect the area of the worksite, anticipate

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hazards that employees may be exposed to, and take measures to prevent the

occurrence of a violative condition, it could have known about the risks of driving

an 11,000 pound scissor lift in an area of the project where there was at least one

hole covered by depressed and damaged plywood. Furthermore, in asking the

court to disregard documentary evidence in favor of its employee’s testimony, PCI

improperly invites the court to reweigh the evidence. See Ostrom Mushroom

Farm, 13 Wn. App. 2d at 271. Substantial evidence supports the challenged

finding, which in turn supports the Board’s determination that PCI had constructive

knowledge of the hazard.

Finding of fact 15 provides, “On September 20, 2021, the rectangular hole

covers in the area where Mr. Phillips was working were visible.” In support of this

finding, the Board noted, “the photographic evidence taken . . . demonstrates the

holes were visible” and “[a]s shown by the admitted photographs, the depressed

hole, and the rectangular outlines of the covered holes were visible.” Substantial

evidence supports the finding, including photographs of the covered holes showing

that the rectangular outlines are readily observable to the naked eye.

PCI nevertheless contends the hole covers could not be observed visually,

it is not required to conduct “detective work,” and it therefore could not have

anticipated the hazard. But as noted above, photographic evidence contradicts

PCI’s factual assertion. And the possibility of drawing different conclusions from

the evidence does not prevent the Board’s findings of fact from being supported

by substantial evidence. Furthermore, we view the evidence and all reasonable

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inferences that can be drawn from that evidence in favor of the Department (the

prevailing party below), and we do not reweigh the evidence on appeal. Ostrom

Mushroom Farm, 13 Wn. App. 2d at 271. For all these reasons, substantial

evidence supports finding of fact 15.

Finally, finding of fact 17 states, “On September 20, 2021, PCI had

knowledge, or with the exercise of reasonable due diligence should have known,

of the six rectangular holes and hole covers along the west-edge of the fifth floor

of the WSCCA project.” As discussed above, the Department presented

substantial evidence that supported the finding that PCI exposed Phillips to a

hazard. As PCI had access to documents showing six large holes were planned

on the fifth floor, it could have become aware of the condition and anticipated the

hazard to Phillips’ safety. Furthermore, PCI observed the hole coverings from

below, on the fourth floor, just days prior to Phillips’ death, which further supports

the Board’s determination that PCI had constructive knowledge of the violative

condition since PCI could have used that information in the exercise of reasonable

diligence to anticipate the hazard.

At the hearing before the Board, PCI repeatedly emphasized that it relied

on visual inspections to ensure hole covering safety, yet it failed to note the

rectangular outlines of the hole coverings in its work area and failed to notice the

depressed and damaged hole cover near the work area on the day Phillips died.

When asked, “how does PCI as a subcontractor verify whether holes are properly

covered?” a PCI branch safety supervisor responded, “[v]isual inspections.” But

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as noted previously, PCI had removed the question asking about concealed hole

hazards in the pre-task plans used the day of Phillips’ death. The decision is

bewildering given PCI’s own training about the risk of holes while operating

scissor-lifts. Indeed, PCI’s safety training materials state, “[d]ropping a wheel in a

hole or off an edge with subsequent tip-over” is one of the “big three (3) in

accidents” involving a scissor lift.

Particularly when viewed in the light most favorable to the Department,

substantial evidence supports the Board’s finding that PCI had constructive

knowledge of the violative condition. As stated above, “constructive knowledge is

established where the employer in the ‘exercise of reasonable diligence’ could

have become aware of the condition.” Pro-Active Home Builders, 7 Wn. App. 2d

at 18 (quoting former RCW 49.17.180(6) (2018)). Reasonable diligence “includes

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

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

violative condition.” Bayley Constr., 10 Wn. App. 2d at 783. The Department

presented substantial evidence that the holes were readily observable and in a

conspicuous location in the area of PCI’s crew. Had PCI exercised reasonable

diligence by identifying the large holes in the blueprints, inspecting the surface of

the fifth floor after observing the plywood covers from below several days prior to

the incident, or conducting more thorough visual inspections with adequate pre-

task plans, it could have discovered the hole hazards.

* * *

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In sum, substantial evidence supports the challenged findings, and the

Board’s findings support its conclusion (as stated in conclusion of law 2) that PCI

violated WAC 296-869-60030(1) by failing to ensure its operator of an elevated

work platform kept a safe distance from holes. 1

C

In conclusion of law 3, the Board affirmed the Department’s determination

that PCI had violated WAC 296-880-40015(1)(b) by failing to ensure hole covers

at the work site could support twice the weight of the equipment that may be

imposed on the cover at any one time. The Board addressed this issue in finding

of fact 24, which states, “PCI did not require the hole covers to be capable of

supporting, without failure, at least twice the weight of the employees, equipment,

and materials that may be imposed on the cover at any one time.” Although PCI

assigns error to this finding, it offers no substantive challenge to the finding other

than to assert it could not have made its workplace safe for employees by

sufficiently covering holes it did not know about. Because it fails to engage in the

required analysis regarding this finding, it is a verity on appeal. Frank Coluccio

Const., 181 Wn. App. at 35. In any event, the finding is supported by substantial

1 PCI complains in its briefing that much of the evidence supporting the citations consists of what it

characterizes as “post-incident photographs,” “hindsight,” and “post-investigation detective work.” PCI similarly asserted at oral argument that the Department had failed to prove its citations with “pre-incident evidence.” Wash. Ct. of Appeals oral argument, Performance Contracting, Inc. v. Dep’t of Labor & Indus., No. 88370-4-I (April 9, 2026), at 0 min., 59 sec. (on file with court). But as PCI’s counsel acknowledged on rebuttal, no reported decision supports this temporal distinction. Oral argument at 18 min., 50 sec. Where, as here, “a party provides no citation to support an argument, this court will assume that counsel, after diligent search, has found none.” State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020). Nor does such a temporal distinction make logical sense here, as the information gathered by the Department after the accident—such as plans depicting the holes, the depressed hole cover, and the visible outline of the rectangular holes as shown in numerous photographs—was available to PCI before the accident through the exercise of reasonable diligence.

14 No. 88370-4-I

evidence. At the hearing, PCI repeatedly stated it has no internal procedure to

verify the sufficiency of hole coverings, instead instructing employees to simply

avoid covered holes. During the hearing, when asked “So in your role as the safety

foreman, does it include assessing or working with one of the engineers at PCI to

verify what weight bearing a particular hole may or may not have?” the PCI

employee replied, “As a policy and a rule, we don’t drive over hole covers.” Id.

Then, when asked “in terms of confirming that covers can withstand a certain

weight, how is that confirmed?” the employee stated “We don’t drive over hole

covers. It’s not even something that I really need to worry about. We are not hitting

those. That standard is for [other parties] to build the hole covers.” And when a

PCI Vice President was asked, “What is PCI’s practice for confirming the weight-

bearing limit of a covered hole?” he replied “we do not confirm” and noted that PCI

relies on other parties to follow the work site’s guidelines about the strength of hole

covers without verifying they do so.

This evidence supports the finding that “PCI did not require the hole covers

to be capable of supporting, without failure, at least twice the weight of the

employees, equipment, and materials that may be imposed on the cover at any

one time.” Accordingly, we affirm the Board’s determination—as stated in finding

of fact 24 and conclusion of law 3—that PCI violated WAC 296-880-40015(1)(b).

D

Lastly, the Department cited PCI for violating WAC 296-155-110(2), which

states that employers “must develop a formal accident-prevention program,

tailored to the needs of the particular plant or operation and to the type of hazard

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involved.” In finding of fact 29, the Board found that “PCI’s site-specific safety plan

was inadequate because it does not include any requirements for hole covers, hole

hazards, and driving elevating work platforms on or near holes, depressions, and

other hazards.” Substantial evidence supports this finding. Although PCI had a

site-specific “Safety & Health Manual” for the WSCCA project, the plan did not

specify how PCI employees should prevent accidents related to holes or hole

coverings, nor did it require them to check for holes or hole coverings while

operating motorized vehicles. It indicates employees should complete “pre-task

plans” as part of daily site reviews, which, as discussed above, did not include

searching for hole hazards on the day Phillips died.

In response to this determination, PCI argues that the Board improperly

shifted the Department’s burden to prove a serious violation of WISHA to PCI by

“fault[ing] PCI for not introducing [its Accident Prevention Program (APP)] and

treat[ing] the site-specific plan’s omissions as proof of a violation.” According to

PCI, it maintains “roughly a 500 page” APP that operates as the “general” “master

safety plan for PCI.” PCI further claims that the APP addresses holes and floor

coverings. And lastly, it argues it was not required to offer this document into

evidence because “it was the Department’s burden to prove each alleged violation

at trial by a preponderance of evidence.”

PCI’s argument ignores the WISHA requirement that the employer maintain

a safety plan tailored to the particular worksite. Even if PCI’s master APP

addresses hole cover hazards generally (a claim which cannot be verified because

the APP was not entered into evidence), nowhere in PCI’s site-specific plan are

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employees directed to the APP for information related to holes. Nor does the plan

generally direct employees to the APP as a purported “master” safety plan. And

nor are employees instructed in the site-specific plan to review the APP. In fact,

the WSSCA site-specific plan only refers to the APP regarding the management

of subcontractors and silica exposure. On this record, PCI’s burden shifting

argument easily fails.

As with the other challenged findings, substantial evidence supports the

Board’s determination—as stated in finding of fact 29 and conclusion of law 4—

that PCI violated WAC 296-155-110(2). 2

III

We affirm the Board’s decision and order and, accordingly, affirm the

superior court’s decision on judicial review.

WE CONCUR:

2 Together with its challenge to finding of fact 29, PCI challenges finding of fact 37, which states

that “PCI did not adequately communicate its safety rules to employees.” Although PCI repeatedly asserts this argument alongside its argument regarding finding of fact 29, finding of fact 37 is not relevant to the Board’s determination that PCI violated WAC 296-155-110(2). And the Board did not rely on finding of fact 37 in concluding that PCI had committed a serious violation of WAC 296- 155-110(2). Instead, the finding is relevant to an affirmative defense based on unpreventable employee misconduct, which PCI asserted at the outset of the hearing and later abandoned. Consistent with that abandonment, PCI does not challenge the Board’s conclusion of law 5 regarding this issue. Thus, as the Department correctly argues, we need not determine whether substantial evidence supports the Board’s finding that PCI did not adequately communicate its safety rules to employees.