Filed Washington State Court of Appeals Division Two
June 13, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II THREE TREE ROOFING, No. 57042-4-II
Respondent,
v.
THE DEPARTMENT OF LABOR & UNPLUBLISHED OPINION INDUSTRIES OF THE STATE OF WASHINGTON,
Appellant.
GLASGOW, C.J.—Three Tree Roofing Company received Department of Labor and
Industries safety citations in 2018 and early 2019 for crew members not having appropriate fall
protection. In September 2019, an inspector for the Department issued another citation for a repeat
fall protection violation. Three Tree appealed the citation to the Board of Industrial Insurance
Appeals, arguing an affirmative defense that the violation was due to unpreventable employee
misconduct. The Board found that Three Tree failed to prove all of the elements of the affirmative
defense. The Board affirmed the Department’s citation against Three Tree.
The superior court then reversed, finding Three Tree proved the affirmative defense. The
Department appeals, arguing that substantial evidence supports the Board’s conclusion that Three
Tree did not successfully prove unpreventable employee misconduct. We reverse the superior
court and affirm the Board’s decision because substantial evidence in the record supports the
Board’s conclusion. Although there is some evidence in the record supporting the affirmative
defense, we do not reweigh the evidence on substantial evidence review. No. 57042-4-II
FACTS
I. BACKGROUND
In September 2019, Jessica Wilke, an inspector for the Department of Labor and Industries,
conducted a workplace safety and health inspection of a roofing project being performed by Three
Tree Roofing Company in Buckley, Washington. Wilke observed several Three Tree employees
working without fall protection on a steep “roof of a two-story home approximately 20 feet above
concrete and gravel.” Clerk’s Papers (CP) at 320. Each of the workers “on the second story roof .
. . [had] a harness on, but . . . didn’t appear to have any rope or lifeline attached to that harness.”
CP at 149. This exposed the workers to falls that could “result in permanent disability or death.”
CP at 321. The project’s crew leaders, Misael Sanchez and Denis Sanchez, were among those
without fall protection.
Under RCW 49.17.120, the Department cited Three Tree for violating former WAC 296-
155-24609(7)(a)(i) (2016), which required employees to wear fall protection gear when working
above certain heights, depending on the pitch of the roof. The company had been cited twice before
for the same fall protection violation – once in August 2018 and again earlier in 2019. One of these
violations involved members of the same crew. The Department assessed a monetary penalty for
this repeat violation of $15,000.1
Three Tree appealed the citation through the Department’s internal review process. The
Department affirmed the violation, but reduced the monetary penalty to $10,500. Three Tree
appealed the Department’s decision to the Board of Industrial Insurance Appeals.
1 The Department also cited Three Tree for using a ladder that did not extend “at least 3 feet above the landing surface,” exposing workers to “fall hazards and serious injuries which could result in hospitalization or limited disability.” CP at 323. The Board found that the Department had appropriately penalized Three Tree for the ladder violation. The superior court affirmed. Three Tree does not dispute the ladder violation on appeal.
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II. HEARING BEFORE THE BOARD OF INDUSTRIAL INSURANCE APPEALS
On appeal to the Board, Three Tree argued in part that the safety violation was due to
unpreventable employee misconduct. Unpreventable employee misconduct is an affirmative
defense to an employer’s safety violation that requires the employer to meet four elements. RCW
49.17.120(5)(a). The fourth element, that the employer must prove “[e]ffective enforcement of its
safety program as written in practice and not just in theory,” is the only element in dispute in this
case. Id.; CP at 29.
During the hearing before the Board, Wilke testified that she spoke with Three Tree’s
owner, Neil Haugen, on the day of the violation. Wilke reported that Haugen called the workers a
“rogue crew,” because “they had been written up [before].” CP at 188. Haugen also told her there
was a “20 percent chance [company officials] might stop by the site” for “random site inspections.”
CP at 160.
Wilke also spoke to the crew leaders, Misael and Denis, during the inspection. As “lead
roofer,” she stated, Misael was supposed to “conduct[] the walk-around safety inspections,” “fill[]
out the fall protection work plans and go[] over that with the employees,” and “have disciplinary
responsibility and enforcement for safety rules on site.” CP at 159. Misael told her that he had
“authority to enforce safety” rules but had “never used it.” Id.
Wilke testified that during the inspection, she was provided with a workplace inspection
checklist filled out by Haugen and a fall protection work plan filled out by Misael. She noted that
the workplace inspection checklist “[did not] mention fall protection,” and the fall protection work
plan was “filled out incorrectly” such that multiple fall protection systems were inaccurately
marked as being used by the team. CP at 204, 206. She testified that Misael said that was how he
always completed the form.
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In support of its defense, Three Tree provided evidence of its safety procedures. Haugen
testified that “when an employee is hired, there is a first day orientation” that covers “safety
practices and protocols,” including “harnesses and safety equipment.” CP at 239. The “safety
manager,” as well as Haugen and his business partner, conducted “spot checks” and “bi-weekly .
. . full company-wide safety meeting[s].” CP at 240. These safety meetings were conducted in both
English and Spanish.
Three Tree also presented evidence of internal compliance checks performed on past jobs,
including those on which Misael and Denis were listed as project crew leaders. The notes for one
of these checks completed in June 2019 stated, “Spoke with crew leaders about incident last month
and stressed the necessity of always wearing harnesses. Spoke to each member of the crew to make
sure they knew it is 100 percent not . . . optional.” CP at 194-95. Three Tree also provided evidence
of the “fall protection work plan”— in English and Spanish — that “crew leaders use to do their
walk-around safety inspection before work is done on every job.” CP at 202.
Haugen explained Three Tree’s “three strikes” disciplinary policy. CP at 199. The
disciplinary policy escalated from a “verbal warning,” to a written warning, to a “third strike” that
was “typically[] termination.” CP at 279-80. When asked if the company documented verbal
warnings, Haugen testified, “not as much.” CP at 280. Haugen further testified that he reported
verbal warnings if they were “necessary to sink the gravity of the situation.” CP at 295. Regardless,
Haugen believed that Three Tree “consistently enforced [the] disciplinary policy with regard to all
employees [on the] day of [Wilke’s] inspection.” CP at 287. Consistent with the company’s
disciplinary policy, Three Tree fired Misael and Denis. Wilke’s inspection was the third time both
crew leaders had been found “on a roof without proper L&I and OSHA fall protection.” CP at 547-
48. They had been warned after their second offenses, but Wilke noticed, by “looking at the dates,”
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that these warnings were in response to “L&I inspections and violations, not random [company]
visits.” CP at 200.
Wilke said she would have expected Three Tree “to be making more random visits” to its
work sites to check for safety violations. CP at 216. When asked about his statement that there was
a “20 percent chance” of a random inspection, Haugen said, “[I]f you do the math on four crews,
two a week, . . . theoretically, that’s, . . . 20 percent a week. I would think over the course of a
month you would get two or three in there.” CP at 272. Haugen said they performed “one to two
per week . . . per person, but . . . if possible, . . . would do three a week sometimes.” CP at 271-72.
When performing these “surprise inspect[ions],” Haugen testified that company officials would
use a safety inspection checklist. CP at 265. He said that his business partner “did not fill out forms
for every” inspection; “[i]t was more about making sure things were right, than the
documentation.” CP at 271. Haugen also testified that he knew “for certain” they had done many
more inspections than the documentation presented during the hearing suggested. CP at 271. In
contrast, the workers said they “might see someone, maybe, once a month.” CP at 188.
Haugen’s “rogue crew” comment expressed his disappointment in the crew. CP at 273. He
was surprised they would be so careless after receiving write ups and retraining. Haugen explained
that the crew knew the rules and he asserted that their decision to ignore the safety requirements
was intentional.
III. THE BOARD’S DECISION
The Board affirmed the Department’s citations against Three Tree, concluding that the fall
protection violation was not due to unpreventable employee misconduct under RCW 49.17.120(5).
Three Tree met the first three elements of unpreventable employee misconduct: the
company had “work rules designed to prevent the violation, . . . adequately communicated these
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rules to its employees,” and showed that it took “steps to discover violations.” CP at 27. However,
the Board found that the company did not meet the fourth element, failing to “show[] by a
preponderance of the evidence” that its “safety program was not effective in practice.” CP at 28,
29. The Board explained:
The employer had two prior fall protection violations within 15 months of the violations at issue in this appeal. All of the workers working at the inspected job site were working without fall protection at the time of the inspection, including two crew leaders who had responsibility for enforcing the safety program. This was the third fall protection violation for the two crew leaders and one other worker. The three workers had been told of their first two violations, and told that a third violation would result in termination, but that did not stop them from working without the required fall protection.
CP at 29 (Finding of Fact (FF) 11). Three Tree’s “failure to ensure that its employees were using
appropriate fall protection” during the September 2019 inspection “exposed the employees to the
risk of serious bodily harm.” Id. at 29 (FF 7). The company “either knew or should have known
about the hazard,” especially in view of past citations for fall violations. Id.
IV. APPEAL TO SUPERIOR COURT
Three Tree appealed the Board’s decision to superior court. A superior court reviewing a
Board decision must affirm if substantial evidence supports the Board’s findings. RCW
49.17.150(1). The court held that the Board erred, concluding that Three Tree satisfied the
elements of the affirmative defense because Three Tree’s safety plan was “workable,” and the
“amount of work that [Three Tree] [was] doing,” as well as the low incidence of reported injuries,
“sp[oke] to the effectiveness of [the] safety program.” Verbatim Rep. of Proc. at 17-18. The court
also stated that the Department had treated the fourth element as a “strict liability requirement,” in
which any violation “in and of itself is proof that all [the employer] [has] is a paper program[]
[that] [is] not actually being followed.” Id. at 17.
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Accordingly, the court concluded that the Department had erroneously cited Three Tree
for the fall protection violation. The court decided that substantial evidence did not support a
serious violation because Three Tree’s violation “was the result of unpreventable employee
misconduct.” CP at 590.
The Department appeals and asks us to affirm the Board’s decision.
ANALYSIS
An employer’s Washington Industrial Safety and Health Act of 1973 (WISHA), chapter
49.17 RCW, violation may be excused if it was due to unpreventable employee misconduct. Pro-
Active Home Builders, Inc. v. Dep’t of Lab. & Indus., 7 Wn. App. 2d 10, 20, 432 P.3d 404 (2018).
The affirmative defense applies where “‘employees disobey safety rules despite the employer’s
diligent communication and enforcement.’” Id. (quoting Asplundh Tree Expert Co. v. Dep’t of Lab.
& Indus., 145 Wn. App. 52, 62, 185 P.3d 646 (2008)). To establish unpreventable employee
misconduct, an employer must demonstrate:
(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).
I. STANDARD OF REVIEW
We review Board decisions regarding WISHA violations directly, “based on the record
before the agency.” Legacy Roofing, Inc. v. Dep’t of Lab. & Indus., 129 Wn. App. 356, 363, 119
P.3d 366 (2005). The Board’s findings are conclusive if they are “‘supported by substantial
evidence on the record considered as a whole.’” Id. (quoting RCW 49.17.150(1)). Evidence is
substantial if it is in “‘sufficient quantum to persuade a fair-minded person of the truth of the
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declared premise.’” Id. (quoting Fred Hutchinson Cancer Rsch. Ctr. v. Holman, 107 Wn.2d 693,
712, 732 P.2d 974 (1987)). We do not reweigh evidence in a substantial evidence review of the
record; instead, we construe the “evidence in the light most favorable to the party that prevailed
before the Board,” here, the Department. Potelco, Inc. v. Dep’t of Lab. & Indus., 194 Wn. App.
428, 434, 377 P.3d 251 (2016) (Potelco I).
III. UNPREVENTABLE EMPLOYEE MISCONDUCT
The Department argues that Three Tree’s unpreventable employee misconduct defense
fails because the final element of the affirmative defense was not satisfied. The Department asserts
that the Board properly found that Three Tree’s safety program was not effective in practice. We
agree.
We review the record to evaluate whether the Department presented substantial evidence
that Three Tree failed to show “[e]ffective enforcement of its safety program as written in practice
and not just in theory.” RCW 49.17.120(5)(a)(iv). To show that a safety program was effectively
enforced in practice, the employer must demonstrate that the misconduct “was an isolated
occurrence and was not foreseeable.” Pro-Active Home Builders, 7 Wn. App. 2d at 20; Legacy
Roofing, 129 Wn. App. at 366. Misconduct may be foreseeable where there is a history of prior
violations or lax enforcement, and a supervisor’s violation supports an inference of lax
enforcement because supervisors are responsible for ensuring employee safety. Legacy Roofing,
129 Wn. App. at 367; Potelco I, 194 Wn. App. at 437-38. Documentary evidence of the employer’s
compliance with a progressive disciplinary policy can show an effectively implemented and
enforced safety program in practice. BD Roofing, Inc. v. Dep’t of Lab. & Indus., 139 Wn. App. 98,
113-14, 161 P.3d 387 (2007).
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We agree with the Department that there is substantial evidence in the record to support
the Board’s finding that Three Tree failed to enforce its employee safety program in practice.
A. Foreseeability
1. Prior violations
The Department argues that Three Tree’s prior fall protection violations, some involving
the same crew leaders; its decision to continue to allow these noncompliant crew leaders to
supervise crews together; and its failure to consistently check on these crew leaders to ensure
adequate safety compliance, all demonstrate the foreseeability of the violation at issue. Three Tree
responds that in the context of the “[h]undreds of roofing jobs . . . completed before the September
2019 inspection,” the prior violations “did not create foreseeability that these specific employees
would violate the fall protection requirements.” Br. of Resp’t at 18-19. Three Tree asks that we
look to the “employer’s entire safety program, . . . not just the consequences of a single event,”
and argues that “bas[ing] [the] ineffectiveness of its safety program on the alleged safety violation
itself” amounts to a “strict liability standard that if adopted, negates the unpreventable employee
misconduct defense.” Id. at 19.
We have rejected this very argument before, holding that prior identical safety violations
are evidence of foreseeability, even if they are not dispositive. “[T]he existence of prior violations
does not absolutely bar use of the unpreventable employee misconduct defense.” Washington
Cedar & Supply Co., v. Dep’t of Lab. & Indus., 119 Wn. App. 906, 913, 83 P.3d 1012 (2004).
However, “prior citations for similar conduct may . . . provide notice to the employer of the
problem.” Id. Therefore, similar violations in the past can serve as “evidence that the employee
conduct was foreseeable and, therefore, preventable” even though such evidence is not dispositive
of foreseeability. Legacy Roofing, 129 Wn. App. at 367 (emphasis added).
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In Washington Cedar, we determined that prior similar safety violations supported the
Board’s finding of an ineffectively enforced safety program. 119 Wn. App. at 913. The Department
cited the employer, Washington Cedar, for a fall protection violation after observing an “employee
standing on the roof . . . not wearing fall restraints or fall arrest gear.” Id. at 910. Washington Cedar
had “two prior fall protection violations . . . within three years of the instance at issue.” Id. We
concluded that substantial evidence supported the Board’s finding that Washington Cedar did not
demonstrate an effectively enforced safety program. Id. at 912-13. The two prior fall protection
violations, supported by unidentified “additional evidence,” supported the Board’s conclusion. Id.
at 913. Washington Cedar therefore failed to show unpreventable employee misconduct. Id.
In Legacy Roofing, we upheld the Board’s determination that a single prior fall protection
violation made the subsequent fall protection violation at issue foreseeable. Legacy Roofing, 129
Wn. App. at 367-68. The Department cited the employer, Legacy, for violating WISHA standards
after observing a worker on the roof without fall protection gear. Id. at 359-60. Legacy had been
cited for the same violation 23 months before. Id. at 360. Legacy argued that it was “impossible”
to show effective enforcement of its safety program because the “Board assumed that the mere
fact of the violation showed that Legacy’s program was not effective in practice.” Id. at 367. We
disagreed, concluding that even from “one prior identical violation,” it was “sufficiently
foreseeable that one of Legacy’s employees would again work on the roof of a house without
wearing required fall safety equipment.” Id. at 367-68. We concluded that substantial evidence in
the record supported the Board’s conclusion that Legacy did not meet all the elements of
unpreventable employee misconduct, including that its safety program was not effective in
practice. Id. at 368.
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Here, the violation was similarly foreseeable in light of Three Tree’s past violations in
2018 and earlier in 2019, which involved the same crew leaders. Three Tree’s strict liability
argument is akin to the argument rejected in Legacy Roofing, namely that the Board had assumed
“the mere fact of the violation showed that Legacy’s program was not effective in practice.”
Legacy Roofing, 129 Wn. App. at 367. Like the court in Legacy Roofing, we disagree.
The Board did not consider only the mere fact of the violation when it affirmed the citation
here. Instead, as in Washington Cedar and Legacy Roofing, the Board considered Three Tree’s
“two prior fall protection violations within 15 months of the violation[] at issue” in concluding
that the company’s safety program was ineffective in practice. CP at 29 (FF 11). “This particular
crew had been involved in a fall protection violation just a few months earlier,” and for “three of
the workers, including both crew leaders,” this violation was “their third offense.” CP at 28.
Additional evidence factored into the Board’s decision as well, as it did in Washington Cedar,
including that: Three Tree chose to keep this crew together despite their prior violations rather than
splitting them up, the crew said they experienced random safety checks only once per month, one
crew leader said he had never used his authority to enforce safety requirements, and there was
testimony that discipline was only imposed when the Department found violations.
2. Lax enforcement
The Department argues that because “on-site supervisors violated the fall protection safety
rules,” Three Tree’s “enforcement of its safety program was lax and not effective in practice.” Br.
of Appellant at 29. Three Tree concedes that “[s]upervisory employees violating safety rules is
potentially evidence of lax enforcement of safety rules,” but argues that in this case, it effectively
enforced its safety program in practice because of its site inspections, employee training programs,
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routine supervision, and consistent discipline of safety violations. Br. of Resp’t at 28. We agree
with the Department.
Lax enforcement of safety rules can make a violation foreseeable. Potelco I, 194 Wn. App.
at 437-38. Lax enforcement may be inferred from “‘negligent behavior by a supervisor or foreman
[that] results in dangerous risks to employees under his or her supervision.’” Id. at 437 (quoting
Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987)). And, “knowledge that an employee
is flouting safety rules and . . . may require additional monitoring” supports the foreseeability of a
violation. Pro-Active Home Builders, 7 Wn. App. 2d at 21.
In Potelco I, Division One affirmed the Board’s finding that the employer, Potelco, did not
effectively enforce its safety program in part because of “Potelco’s lax enforcement of its safety
rules.” 194 Wn. App. at 438. The foreperson of a crew working on a “de-energized high voltage
line” allowed the project to start despite knowing that an equipotential zone, a Department safety
requirement that “protects workers . . . from electrocution and death,” had not been created. Id. at
431-32. The foreperson was “responsible for enforcing safety rules at the work site, . . . authorized
. . . to stop work and to discipline employees who broke safety rules,” and could “terminate
employees for safety violations.” Id. at 432. A crew member “suffered serious electrical shock
injuries” when the “line became charged with dangerous electrical energy.” Id. at 432-33. The
foreperson’s “participation in the violation,” especially as someone “empowered with supervisory
authority . . . rais[ed] an inference of ‘lax enforcement and/or communication’ of Potelco’s safety
policy.” Id. at 438. Substantial evidence supported the Board’s finding that Potelco did not
effectively enforce its safety program, and the court affirmed the Board’s rejection of the
unpreventable employee misconduct defense. Id.
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In Potelco, Inc. v. Department of Labor & Industries, 7 Wn. App. 2d 236, 250, 433 P.3d
513 (2018) (Potelco II), we again held that Potelco had failed to “demonstrate effective
implementation of its safety program in practice.” The project involved installing new power lines,
and an equipotential zone was not established at the work area. Id. at 240. The crew foreperson
working a few hundred feet away from the other workers, cut a power line that “blocked a
residential driveway, . . . but [the crew foreperson]did not communicate this fact to the rest of the
crew.” Id. A crew member, unaware the line had been cut, picked it up and pulled it, making
contact with an energized connection device, which resulted in him receiving a mild electric shock.
We concluded Potelco “did not present any evidence of specific examples of corrective or
disciplinary action other than overarching changes to its safety training and the discipline of the
four linemen involved.” Id. at 250. The “project foreman’s involvement” suggested the violation
was not an “isolated instance[] of unpreventable employee misconduct.” Id. at 250-51.
In Pro-Active Home Builders, we held that the employer, Pro-Active, did not effectively
enforce its safety program in practice. 7 Wn. App. 2d at 22. One of Pro-Active’s superintendents
“observed a lead worker . . . on the roof . . . without safety equipment,” issued a “verbal warning,”
and subsequently “left [the worker] in charge of safety at the site.” Id. at 13. Pro-Active argued
that the employee had “just been reminded of the safety requirements,” so it would be “foreseeable
that the employee would be cognizant and abide by the rules.” Id. at 21. We disagreed, holding the
misconduct was foreseeable because “[d]espite seeing [the worker] commit a safety violation, the
superintendent left him in charge of safety and made no further attempt to monitor [the worker’s]
compliance with safety rules.” Id.
Like in Potelco I and Potelco II, Three Tree’s crew leaders, Misael and Denis, were
participants in the misconduct, failing to wear fall protection gear themselves and failing to make
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their crew do so. Both crew leaders had been involved in two prior fall protection violations, a fact
that the Board found contributed to Three Tree’s ineffective safety program. Although Misael, as
lead roofer, did not have authority to terminate employees, he was empowered to enforce safety
rules. He admitted to never doing so. According to Wilke, Misael also incorrectly completed the
safety inspection form before beginning work, and told her he completed the forms the same way
every time.
Haugen told Wilke the workers were a “rogue crew.” CP at 273. Three Tree suggests “his
choice of words reflect[s] shock and dismay.” Br. of Resp’t at 24. While this may be true, Haugen
acknowledged that this crew had been the subject of citations in the recent past. Despite these
violations, Haugen still chose to keep Misael and Denis in charge of safety enforcement at their
work sites. While there is evidence of compliance checks on Misael’s and Denis’s past projects in
which Three Tree officials emphasized the importance of fall protection, as in Pro-Active Home
Builders, merely warning employees who were known to ignore fall protection rules, without
additional monitoring, does not defeat foreseeability.
Three Tree did present evidence of an established written safety program, regular safety
trainings, and past disciplinary action against noncompliant workers. But viewing the record in the
light most favorable to the Department, as we must, the crew leaders’ repeated flouting of the
company safety rules, Misael’s apparent misunderstanding (or disregard) of the safety inspection
process and failure to enforce the safety program, in conjunction with Haugen’s awareness of the
crew’s past violations, amount to substantial evidence establishing that this particular fall violation
was attributable to lax enforcement.
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Three Tree cites to a decision by the Board, In re Tyson Fresh Meats, No. 17 W1079
(Wash. Bd. of Indus. Ins. Appeals Dec. 17, 2018),2 to argue that we should not over emphasize the
misconduct of a supervisor when evaluating how effective its safety program was in practice. In
Tyson, a supervisor “was reassembling meat grinders” after they had been cleaned, “a task that he
[did] not typically perform.” No. 17 W1079, at 2. He failed to take certain safety precautions before
reaching into a piece of equipment that unexpectedly “turned on and amputated two of his fingers.”
Id. The Board held that in view of “abundant evidence of [the company] disciplining its employees
for” violations of these particular safety procedures, the supervisor’s “non-compliance . . . was an
isolated incident and was not foreseeable.” Id. at 6, 8.
This case is distinguishable from Tyson because the misconduct of the Three Tree crew
was not isolated. Three Tree knew of the crew leaders’ past fall protection violations and still chose
not to separate them onto different crews or more closely supervise them. And Three Tree did not
provide evidence of robust discipline of employees violating fall protection requirements.
We hold that due to Three Tree’s prior fall protection violations, as well as demonstrated
lax enforcement, the September 2019 violation was not an isolated incident, but instead it was
foreseeable. Substantial evidence in the record supports the Board’s finding that Three Tree’s
safety program was not effective in practice.
3. Lack of injury
The Department contends that the “superior court erred when it determined [in part] that,
because [Three Tree] did not have any reported injuries,” the safety program was effective in
practice. Br. of Appellant at 45. Three Tree counters that “at the time of the September 2019
2 http://www.biia.wa.gov/DO/17W1079_ORD_20181217_DO.PDF
15 No. 57042-4-II
inspection,” it had “no workplace injuries of record and no chronic safety issues with any particular
employee or crew.” Br. of Resp’t at 18. We agree with the Department.
An employer’s history of few employee injuries has no bearing on whether a violation is
due to unpreventable employee misconduct. See Western Oilfields Supply v. Dep’t of Lab. &
Indus., 1 Wn. App. 2d 892, 908-09, 408 P.3d 711 (2017). So long as the misconduct was
foreseeable, the employer’s safety program cannot have been effective in practice. Id. at 909. In
Potelco II, we concluded that the company’s safety program was not effective in practice even
though the cut power line resulted in the employee “receiv[ing] no injuries besides [a] tingling in
his hand.” 7 Wn. App. 2d at 241. In Western Oilfields, the company argued that “only one injury
took place in the past five years,” and “it had a ‘lower than average amount of workers[’]
compensation claims. ’” 1 Wn. App. 2d at 908-09 (alteration in original). Regardless, Division
One held that the safety program was not effective in practice because it was foreseeable that the
violation would happen. Id. at 909.
While nobody was hurt in this case, Potelco II and Western Oilfields demonstrate that
serious injury is not requisite to a finding of an ineffective safety program. As the incident in
Potelco II posed an electrocution risk to the employee that did not result in injuries, Three Tree
“either knew or should have known” that working without fall protection on the roof “exposed the
employees to the risk of serious bodily harm.” CP at 29 (FF 7). While Three Tree claims that its
injury free record was evidence of the efficacy of its safety program, Three Tree’s prior fall
protection violations, its failure to bring this crew into compliance, and its lax enforcement of
safety measures all show that the misconduct was foreseeable.
16 No. 57042-4-II
B. Documentary Evidence
1. Documentation of verbal warnings
The Department argues that “[b]y Haugen’s own admission, Three Tree Roofing did not
usually document verbal warnings, which was inconsistent with its written disciplinary policy.”
Br. of Appellant at 41. Three Tree claims the Department did not make this argument before the
Board, and it is therefore improper. We disagree.
Three Tree relies on RCW 49.17.150(1), which governs appeals of Board decisions to
superior court. The statute provides that “[n]o objection that has not been urged before the board
shall be considered by the [superior] court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.” RCW 49.17.150(1); see also Dep’t of Lab.&
Indus. v. Nat’l Sec. Consultants, Inc., 112 Wn. App. 34, 36-37, 47 P.3d 960 (2002) (distinguishing
the “permissive language in RAP 2.5(a)” from what is “mandate[d]” by RCW 49.17.150). Three
Tree does not cite to any case; however, that applies this language in RCW 49.17.150(1), beyond
imposing a requirement that a party objecting to an aspect of a Department decision must do so
first before the Board.
Moreover, the Department has consistently argued that Three Tree failed to meet the fourth
element of the affirmative defense, because it did not effectively enforce its employee safety
program in practice. Three Tree’s failure to comply with its own employee discipline policies may
be one reason for finding a lack of effective enforcement, but it is not a whole new argument. A
Department witness testified before the Board more generally about the limited nature of the
discipline records for the crew in question, emphasizing that their documented discipline related
only to instances of prior Department involvement. The Department therefore raised before the
Board the adequacy of Three Tree’s application and documentation of its employee discipline
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policies. Finally, Three Tree does not argue that it was deprived of an opportunity to provide
further evidence related to documentation of written warnings, perhaps because its own attorney
elicited the evidence the Department now relies upon. We therefore consider Three Tree’s lack of
documentation of verbal warnings in our analysis.
2. Lack of documentation of effective employee discipline
The Department argues that Three Tree demonstrated “deficient record-keeping practices”
and failure to comply with its written disciplinary policies, which also support the Board’s decision
that the fourth element was not met. Br. of Appellant at 44-45. We agree.
An employer may support the effectiveness of its safety program with documented
evidence of the “‘implementation of its written safety program.’” BD Roofing, 139 Wn. App. at
113 (quoting Brock, 818 F.2d at 1277). “Merely showing a good paper program does not
demonstrate effectiveness in practice.” Id. See Pro-Active Home Builders, 7 Wn. App. 2d at 21.
In BD Roofing, we affirmed the Board’s finding that although the employer, BD, met the
first three elements of the unpreventable employee misconduct defense, there was no effective
enforcement of the program in practice. 139 Wn. App. at 112-13. BD had “‘developed a fall
protection work plan,’” provided safety trainings in both English and Spanish, and had “‘safety
directors and corporate officers’” assigned to discovering and correcting violations of safety rules.
Id. at 111-12. We concluded that even so, there was no evidence that BD’s safety inspectors
“actually fired employees because they violated the safety rules.” Id. at 113. Because “fall
protection violations were clearly a recurring and foreseeable problem for BD,” we upheld the
Board’s determination that the safety program was ineffectively enforced in practice. Id. at 114.
In Potelco I, Division One addressed Potelco’s failure to comply with its written safety
program. 194 Wn. App. at 436. Even when employees were “caught violating safety rules, they
18 No. 57042-4-II
were not consistently disciplined or penalized.” Id. Potelco’s policy required that “all discipline
— including verbal warnings — be documented in writing.” Id. Yet, “safety coordinators admitted
that Potelco rarely documented verbal warnings.” Id. We held that this was substantial evidence
supporting the Board’s finding that “Potelco failed to effectively enforce its written safety program
in practice.” Id. at 438.
There is no question that Three Tree had written safety policies in place. Similar to BD’s
program, Three Tree had a fall protection work plan, provided safety trainings and documents in
Spanish for Spanish speaking workers, and had a dedicated safety manager. Three Tree did provide
documented evidence that it enforced some of its safety and disciplinary policies, such as warnings
given to employees after violations of the company’s policies. In-line with its “three strikes”
policy, Three Tree also terminated four crew members, including crew leaders Misael and Denis,
but this occurred after the September 2019 violation in question here.
The record includes only notices of termination that occurred in response to the September
2019 violation. As Wilke testified, Misael’s and Denis’s second offenses were issued on the same
days that the Department conducted inspections of Three Tree work sites, rather than in response
to internal company site visits. Three Tree provided no other evidence of employee discipline for
violations of safety rules.
Haugen testified that Three Tree performed a few random inspections, “theoretically, . . .
20 percent a week,” amounting to “two or three” “over the course of a month” per crew. CP at
272. When performing these surprise inspections, Haugen testified that company officials would
use a safety inspection checklist, some of which are included in the record. Yet, Haugen mentioned
that his business partner “did not fill out forms for every” inspection; “[i]t was more about making
sure things were right, than the documentation.” CP at 271. Three Tree did not adequately
19 No. 57042-4-II
document its verbal warnings to employees as discussed above. As in Potelco I, this indicates that
Three Tree did not follow its written safety policies with respect to its safety inspection checklists
and it did not consistently document surprise inspections. Substantial evidence supports that Three
Tree did not provide sufficient documentation that its safety program was effectively enforced in
practice.
CONCLUSION
We reverse the superior court and affirm the Board’s decision. Substantial evidence in the
record supports the Board’s finding that Three Tree’s safety program was not effective in practice.
The Board correctly concluded that the fall protection violation was not the result of unpreventable
employee misconduct.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, C.J. We concur:
Maxa, J.
Veljacic, J.