Potelco, Inc. v. Wash. State Dep't of Labor & Indus.

• Decision Date: 13 June 2016
• Docket Number: No. 73226–9–I,73226–9–I
• Citation: 194 Wash.App. 428,377 P.3d 251
• Parties: Potelco, Inc., Appellant, v. Washington State Department of Labor and Industries, Respondent.
• Court: Washington Court of Appeals

194 Wash.App. 428

377 P.3d 251

Potelco, Inc., Appellant

v.Washington State Department of Labor and Industries, Respondent.

No. 73226–9–I

Court of Appeals of Washington, Division 1.

FILED: June 13, 2016

Skylar Anne Sherwood, Josias E. Flynn, Riddell Williams PS, 1001 4th Ave., Ste. 4500, Seattle, WA, 98154–1065, for Appellant.

William Henry, Attorney at Law, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104–3188, for Respondent.

Dwyer, J. Potelco, Inc., appeals two citations issued by the Department of Labor and Industries pursuant to the Washington Industrial Safety and Health Act of 1973¹ (WISHA). Because substantial evidence supports the Board of Industrial Insurance Appeals' findings that Potelco failed to establish an equipotential zone, that this failure was not the result of unpreventable employee misconduct, and that Potelco failed to enforce its accident prevention program in a manner that was effective in practice, we affirm.

I

¶ 2 Potelco is a utility contractor that installs and maintains high voltage transmission lines. In March 2011, Potelco was working on a de-energized high voltage line in the Sedro–Woolley area. For approximately 25 miles, a second high voltage line, about 30 feet away, ran parallel to the de-energized line. The proximity of the lines made it possible for the de-energized line to become charged by electricity from the live line by induction. The induction hazard was especially great because the lines ran parallel for such a great distance.

¶ 3 To reduce the induction hazard, Potelco planned to “cut air” into the de-energized line before work began. This would involve breaking the de-energized line into sections to reduce the length of line that could become energized through induction.

¶ 4 The Department's safety standards for electrical workers require the creation of an equipotential zone (EPZ) before working on de-energized transmission lines. WAC 296–45–345(3). An EPZ protects workers from hazardous differences in electrical potential, thereby protecting them from electrocution and death. Potelco's accident prevention program also required that workers establish an EPZ.

¶ 5 Gavin Williams was the foreperson of the Sedro-Woolley project crew. As the foreperson, Williams was responsible for enforcing safety rules at the work site. Potelco authorized him to stop work and to discipline employees who broke safety rules. In fact, Williams had the authority to terminate employees for safety violations.

¶ 6 On the first day of the project, Potelco assigned the crew to work on a section of the line near two transmission poles. Potelco made no arrangements to notify the crew when air had been cut into the de-energized line. The crew was not told to await notification before beginning work.

¶ 7 The crew did not create an EPZ before beginning work on the line. Williams knew that the crew had not established an EPZ. Wanting to impress his superiors and feeling pressured to work quickly, Williams nevertheless allowed work to begin.

¶ 8 Potelco did not cut air into the de-energized transmission line before work began. The line became charged with dangerous electrical energy. As crew members began to lower the line to the ground, Williams tried, but failed, to secure the line. When he could not capture it, Brent Murphy, a crew member, tried to grab it. Upon touching the line, Murphy suffered serious electrical shock injuries.

¶ 9 The Department cited Potelco for failing to create an EPZ and for failing to effectively enforce its accident prevention program.² The Department classified these violations as serious. Potelco appealed to the Board. Potelco argued that its failure to create an EPZ resulted from unpreventable employee misconduct, that it effectively enforced its safety program in practice, and that the cited violations were not serious because it could not have known of the violations, even in the exercise of reasonable diligence.

¶ 10 At the subsequent hearing, crew members from the Sedro–Woolley project testified about Potelco's safety program. They explained that a foreperson or general foreperson would usually warn workers of impending site inspections, which allowed employees to avoid being caught breaking safety rules. Potelco workers routinely violated safety regulations, but the company rarely disciplined employees, even when a foreperson observed the violations. A Potelco safety coordinator also testified that Potelco did not usually document verbal warnings issued to employees, even though failure to do so violated Potelco's written disciplinary policy and undermined the prescribed progressive discipline scheme.

¶ 11 The Board rejected Potelco's unpreventable employee misconduct defense to the EPZ violation. It found that Potelco did not take adequate steps to discover and correct safety violations. The Board also found that Potelco did not effectively enforce its written safety program in practice. Likewise, relative to the second citation, the Board found that Potelco did not effectively enforce its accident prevention program. Finally, the Board determined that the violations were properly classified as serious, thereby rejecting Potelco's assertion that it did not know (and could not have known) of the violations.

¶ 12 Potelco appealed to the superior court. The superior court affirmed, finding that substantial evidence supported the Board's decision.

II

¶ 13 Potelco contends that the citation it received for failing to establish an EPZ should be vacated because the violation was the result of unpreventable and unforeseeable employee misconduct. This is so, Potelco asserts, because Williams and his crew ignored specific instructions from Potelco when they began work without first establishing an EPZ. We disagree.

¶ 14 WISHA governs our review of a Board decision. RCW 49.17.150(1). We review the Board's decision based on the record that was before the Board. Mowat Constr. Co. v. Dep't of Labor & Indus. , 148 Wash.App. 920, 925, 201 P.3d 407 (2009). The Board's findings of fact are conclusive if they are supported by substantial evidence when viewed in light of the record as a whole. RCW 49.17.150(1) ; Mowat Constr. , 148 Wash.App. at 925, 201 P.3d 407. Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the matter asserted. Mowat Constr. , 148 Wash.App. at 925, 201 P.3d 407. We do not reweigh the evidence on appeal. Zavala v. Twin City Foods , 185 Wash.App. 838, 867, 343 P.3d 761 (2015). Instead, we view this evidence in the light most favorable to the party that prevailed before the Board—here, the Department. Frank Coluccio Constr. Co. v. Dep't of Labor & Indus. , 181 Wash.App. 25, 35, 329 P.3d 91 (2014). If we determine that substantial evidence supports the Board's factual findings, we then decide if those findings support the Board's conclusions of law. J.E. Dunn Nw. v. Dep't of Labor & Indus. , 139 Wash.App. 35, 42, 156 P.3d 250 (2007).

WAC 296–45–345(3) requires that workers create an EPZ before grounding and performing work on transmission and distribution lines.³

The Department may not issue a citation if unpreventable employee misconduct caused the violation. RCW 49.17.120(5)(a). To establish the affirmative defense of unpreventable employee misconduct, an employer must show:

(i) A thorough safety program, including work rules, training, and equipment designed to prevent the violation;

(ii) Adequate communication of these rules to employees;

(iii) Steps to discover and correct violations of its safety rules; and

(iv) Effective enforcement of its safety program as written in practice and not just in theory.

RCW 49.17.120(5)(a). An employer asserting the defense must prove each element. Wash. Cedar & Supply Co. v. Dep't of Labor & Indus. , 119 Wash.App. 906, 911, 83 P.3d 1012 (2004). Furthermore, the “evidence must support the employer's assertion that the employees' misconduct was an isolated occurrence and was not foreseeable.” BD Roofing, Inc. v. Dep't of Labor & Indus. , 139 Wash.App. 98, 111, 161 P.3d 387 (2007).

¶ 17 Potelco's argument on appeal focuses on the third and fourth elements of the defense. Potelco first asserts that, contrary to the Board's finding, it took adequate steps to discover and correct safety violations.

¶ 18 An employer's steps to discover and correct safety violations are inadequate when unannounced inspections are infrequent and workers caught violating the rules are not consistently disciplined or penalized, because such steps are insufficient to deter future violations. See Legacy Roofing Inc. v. Dep't of Labor & Indus. , 129 Wash.App. 356, 365, 119 P.3d 366 (2005).

¶ 19 Surprise inspections by Potelco safety inspectors were infrequent. Crews were forewarned of the overwhelming majority—up to 80 percent—of Potelco's “unannounced” safety inspections.⁴ With advance warning, employees were often able to correct safety violations before inspectors arrived. Consequently, inspectors did not detect, and did not impose discipline for, these violations.

¶ 20 Furthermore, even when Potelco employees were caught violating safety rules, they were not consistently disciplined or penalized. Potelco's progressive disciplinary policy required that all discipline—including verbal warnings—be documented in writing. Nevertheless, Potelco safety coordinators admitted that Potelco rarely documented verbal warnings. Thus, an employee could receive numerous verbal warnings, yet incur no progressive discipline for repeating the same violation.

¶ 21 Potelco's steps to discover and correct violations of its safety rules were insufficient to deter future violations. Its practices “created an environment where Potelco's employees readily ignored some safety rules to perform work faster.” Indeed, Potelco employees testified that they routinely saw coworkers break safety rules, yet never be disciplined. In the two years prior to March 2011, Potelco conducted over 1,000 safety audits, yet there is no evidence that a single audit resulted...