Central Steel Inc., App-cross Resp V. Department Of Labor & Industries, Resp-cross App

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CENTRAL STEEL, INC.,
DIVISION ONE
Appellant,
No. 82021-4-I
v. (consol. with No. 82085-1-I)

WASHINGTON STATE DEPARTMENT PUBLISHED OPINION
OF LABOR & INDUSTRIES,

Respondent.

DWYER, J. — Central Steel, Inc., appeals one citation issued by the

Department of Labor and Industries (the Department) pursuant to the

Washington Industrial Safety and Health Act of 19731 (WISHA). Central Steel

contends that, in affirming this citation, the Board of Industrial Insurance Appeals

(the Board) improperly held Central Steel strictly liable for the misconduct of one

of its employees. Central Steel also asserts that substantial evidence does not

support the Board’s finding that its employee was exposed to a fall hazard.

Finally, Central Steel contends that the Board erred by finding that Central Steel

knew of the violative condition. Because Central Steel fails to establish an

entitlement to relief on any of its claims, we affirm.

Central Steel and McClone Construction Company were subcontractors

for the construction of a multistory residence hall at Seattle University. Central

1 Ch. 49.17 RCW.
No. 82021-4-I/2

Steel was hired “[t]o place the rebar in the building and the post-tension cable.”

In December 2017, nine levels of the residence hall were under construction. A

“cattle guard,” or barrier, separated the ninth level into two sections: a northern

section and a southern section. The northern section was designated as a

leading-edge zone.2 McClone constructed the leading edge on the ninth level.

Located at the cattle guard was a sign, which read “McClone Construction

Company Personnel Only, Leading Edge Danger, Fall Protection Required

Beyond This Point.” An employee of McClone testified that, while workers were

located on the northern section of level nine, they were required “to be 100

percent tied off at all times.” Fall protection equipment was required in the

northern section of level nine because the floor consisted of “an open steel

skeleton,” and workers were in the process of “putting down plywood [and] other

types of materials to make a covering over that” skeleton. Furthermore, as

another McClone employee testified, “[t]here might be areas where, in this

building for instance, underneath, the piers had not been completely supported.”

The ninth level of the structure was approximately 90 feet above ground level.

Before workers entered the northern section of level nine, they were

required to wear a full-body harness and attach to the harness a retractable

device known as a “yo-yo.” The yo-yo was designed to “arrest a fall,” should the

occasion arise. Once the workers accessed the location of the northern section

where they planned to work, they were to attach a positioning hook, or lanyard, to

2 “Leading edge means the advancing edge of a floor, roof, or formwork which changes
location as additional floor, roof, or formwork sections are placed, formed, or constructed.”
Former WAC 296-155-24603 (2016).

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No. 82021-4-I/3

the rebar of the structure. The positioning hook was designed “to stop [a fall]

from happening to begin with.” When the workers planned to exit the leading-

edge zone, they were required to reattach the yo-yo, detach the positioning hook,

and then “walk back into the safe zone.”

On December 30, 2017, Central Steel employees Nicholas Hofmann and

Ray Estores were assisting in the construction of a structure located on the

northern section of the ninth level that was known as the “north core.” The north

core was an empty vertical shaft leading to the ground level in which an elevator

would eventually be placed. On that day, Hofmann and Estores were the only

Central Steel employees working on the residence hall. Hofmann was a journey-

level worker. Estores was an apprentice. Joshua Ruckle, a general foreperson

employed by Central Steel, testified that Hofmann was designated as the

“supervisor” for the day.

Hofmann and Estores were assigned “[t]o tie back the rebar elements”

inside the north core. Prior to accessing the northern section of the ninth level,

Hofmann and Estores each wore a harness and each attached a yo-yo to his

harness. Upon reaching the north core, Hofmann and Estores attached their

positioning hooks to the rebar on the north core. Hofmann and Estores then

detached the yo-yos from their harnesses.

After Hofmann and Estores finished working on the north core, they

“climbed down” to the deck on the ninth level. Hofmann testified that, shortly

after he descended onto the deck, Hofmann heard Estores’s “wall-gear jingle.”

Hofmann then “looked back” and noticed that Estores “was gone.” Alfred How, a

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No. 82021-4-I/4

McClone employee who was also on the ninth level at that time, informed

Hofmann that Estores had fallen. How had heard the sound of a “loud crack,”

which he attributed to plywood decking on the ninth level breaking.

Indeed, Estores had fallen approximately 90 feet onto a concrete slab

located at the bottom of the north core. He did not survive. An expert witness

testified that Estores fell because “one of the legs of the lanyards he was using

was attached to an incompatible object.”

Hofmann testified that, after he was informed that Estores had fallen, he

“stopped tying off” by taking his “lanyard off the rebar.” How testified that, when

Hofmann detached from his fall protection equipment, Hofmann was “[r]oughly

about 10 feet” from the leading edge. Hofmann testified that he then “started

booking it downstairs” in order to check on Estores.

That same day, the Department began investigating the fatality. On June

22, 2018, the Department cited Central Steel pursuant to WISHA for a single

“serious” violation of former WAC 296-155-24609(1) (2016).3 Two incidences

served as independent bases for the citation. First, the citation provided that

Estores “did not have his fall protection attached to a proper attachment.”

Second, the citation stated that “[t]wo Employees were exposed to falls of 90 feet

to the ground level, which resulted in the death of one worker and the possibility

of severe disabling injuries or death to the other.”

3 Former WAC 296-155-24609(1) provides: “The employer shall ensure that the

appropriate fall protection system is provided, installed, and implemented according to the
requirements in this part when employees are exposed to fall hazards of four feet or more to the
ground or lower level when on a walking/working surface.”

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No. 82021-4-I/5

On July 6, 2018, Central Steel appealed the citation. On October 4, the

Department issued a corrective notice of redetermination, which affirmed the

issuance of the citation. On October 9, Central Steel appealed the corrective

notice of redetermination.

On June 4, 2019, a two-day hearing commenced before an industrial

appeals judge. On September 26, the industrial appeals judge entered a

proposed decision and order, which affirmed the corrective notice of

redetermination solely on the basis that “Central Steel committed a serious

violation of WAC 296-155-24609(1) because its employee, acting in a

supervisory role, failed to remain 100 percent tied off in an area where he was

required to be tied off.” Conclusion of Law 2. The industrial appeals judge

declined to affirm the citation on the alternative basis that Estores was not

attached to a compatible anchor point.

Notably, the industrial appeals judge found:

Because Mr. Hofmann first stopped tying off while at the corner of
the north core, he was within 20 feet of the leading edge and was in
the zone of danger. He was exposed to a fall hazard of
approximately 90 feet. Had he suffered harm from the fall hazard, it
would have been serious physical injury or death.

Finding of Fact 8.

Furthermore, the industrial appeals judge found that, “[b]ecause Mr.

Hofmann was acting as a supervisor, his knowledge of his own violation is

imputed to the employer. Central Steel knew of the violative condition.” Finding

of Fact 7.

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On November 7, 2019, both Central Steel and the Department petitioned

for review of the proposed decision and order to the Board. On November 22,

the Board entered an order denying the petitions for review. The order corrected

several “clerical errors” in the proposed decision and order but otherwise

provided that “[t]he Proposed Decision and Order becomes the final order of the

Board.”

On December 9, 2019, Central Steel appealed the Board’s order denying

its petition for review to the superior court. On October 19, 2020, the superior

court entered an order affirming the Board’s order.4

Central Steel appeals.

Central Steel contends that “the Board’s affirmation of the fall protection

violation improperly held Central Steel to a strict liability standard.”5 This is so,

Central Steel avers, because “Mr. Hofmann was reacting to an unforeseeable

emergency situation when he unclipped from his fall protection, which Central

Steel could not have foreseen or prevented.”6 We disagree. Central Steel was

not held strictly liable for Hofmann’s violation.

To establish a “serious” WISHA safety violation, the Department is

required to prove that

4 In the superior court, the Department asserted that the citation should also be affirmed
on the basis that Estores was not attached to a compatible anchor point. The superior court
declined to affirm the citation on this basis. The Department cross-appealed from the superior
court’s order in cause No. 82085-1-I. However, in its response brief, the Department states that
“it has now decided not to pursue the appeal.” Br. of Resp’t at 12 n.4. Therefore, the issue is
deemed abandoned.
5 Br. of Appellant at 20.
6 Br. of Appellant at 20.

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No. 82021-4-I/7

(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 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.

Shimmick Constr. Co. v. Dep’t of Labor & Indus., 12 Wn. App. 2d 770, 779, 460

P.3d 192 (2020).

In other words, “the ‘Department must . . . prove an element of knowledge

on the part of the employer’ before holding [the employer] liable.” Potelco, Inc. v.

Dep’t of Labor & Indus., 191 Wn. App. 9, 34, 361 P.3d 767 (2015) (internal

quotation marks omitted) (quoting In re Longview Fibre Co., No 02 W0321, 2003

WL 23269365, at *1, 2003 WA Wrk. Comp. LEXIS 229, at *3 (Wash. Bd. of

Indus. Ins. Appeals Nov. 5, 2003)).

To establish the knowledge requirement of a WISHA violation, the

Department does not bear the burden to prove that the violation was foreseeable.

Potelco, Inc. v. Dep’t of Labor & Indus., 194 Wn. App. 428, 440, 377 P.3d 251

(2016) (stating that “the applicable standard here is whether [the employer] knew

or should have known of the violative condition—not whether the behavior that

led to the violation was foreseeable”). Rather, once the Department establishes

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 ‘unpreventable employee

misconduct’ was the actual cause of the violation.” J.E. Dunn Nw., Inc. v. Dep’t

of Labor & Indus., 139 Wn. App. 35, 46, 156 P.3d 250 (2007) (quoting RCW

49.17.120(5)(a)). To show unpreventable employee misconduct, the employer

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No. 82021-4-I/8

must establish the following four statutory elements:

(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).

Put differently,

“[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 and
unforeseeable.”

BD Roofing, Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 98, 113, 161 P.3d 387

(2007) (second alteration in original) (quoting Brock v. L.E. Myers Co., High

Voltage Div., 818 F.2d 1270, 1277 (6th Cir. 1987)).

Central Steel contends that it was held to a strict liability standard because

Hofmann’s conduct was unforeseeable. To the contrary, Central Steel was not

held to a strict liability standard. The Department was required to prove that

Central Steel either “‘knew or, through the exercise of reasonable diligence,

could have known of the violative condition.’” Potelco, 191 Wn. App. at 34

(quoting Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25,

36-37, 329 P.3d 91 (2014)). Indeed, the Board found that “Central Steel knew of

the violative condition.” Finding of Fact 7.

After the Department established a prima facie case of a WISHA violation,

the burden shifted to Central Steel to establish that Hofmann’s conduct

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No. 82021-4-I/9

amounted to unpreventable employee misconduct. Central Steel did not raise

this defense before the Board; rather, in its petition for review of the proposed

decision and order, Central Steel asserted merely that Hofmann’s conduct was

not foreseeable. However, “[a]n employer asserting the defense must prove

each element.” Potelco, 194 Wn. App. at 435. Because Central Steel did not

attempt to demonstrate all of the elements under RCW 49.17.120(5)(a)(i)-(iv)

when it was before the Board, Central Steel waived any claim on appeal that it

was entitled to the unpreventable employee misconduct defense.7 See RAP

2.5(a); In re Marriage of Buecking, 179 Wn.2d 438, 454-55, 316 P.3d 999 (2013).

Accordingly, Central Steel was not held strictly liable for Hofmann’s

violation.

III

Central Steel asserts that the Board’s finding that Hofmann was exposed

to a fall hazard is not supported by substantial evidence. This is so, Central

Steel avers, because (1) Hofmann was reacting to an emergency situation when

he detached from his fall protection equipment, and (2) Hofmann was 20 feet

from the leading edge and running away from the leading edge when he

detached from his fall protection equipment. Because substantial evidence

supports a finding that Hofmann was exposed to a fall hazard, we disagree.

WISHA governs appellate review of a Board decision. RCW 49.17.150(1).

We review the Board’s decision based on the record before the agency.

7 In any event, Central Steel does not assert on appeal that it established all of the

elements that are required to be proved under the unpreventable employee misconduct defense.
Instead, Central Steel merely contends that Hofmann’s violation was unforeseeable. Again, this
is insufficient. See Potelco, 194 Wn. App. at 435.

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No. 82021-4-I/10

Shimmick, 12 Wn. App. 2d at 778. The Board’s findings of fact are conclusive if

they are supported by substantial evidence. Shimmick, 12 Wn. App. 2d at 778

(citing Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d

1085 (2011); RCW 49.17.150(1)). Evidence is substantial if it is enough to

convince a fair-minded person of the truth of the stated premise. Shimmick, 12

Wn. App. 2d at 778. We do not reweigh the evidence on appeal. Shimmick, 12

Wn. App. 2d at 778 (citing Potelco, 194 Wn. App. at 434). Instead, we construe

the evidence in the light most favorable to the party that has prevailed in the

administrative proceeding. Shimmick, 12 Wn. App. 2d at 778. When substantial

evidence supports the Board’s factual findings, we decide whether those findings

support the Board’s conclusions of law. J.E. Dunn Nw., 139 Wn. App. at 42.

Here, the Board found:

Finding of Fact 8.

We have explained that “the zone of danger is ‘that area surrounding the

violative condition that presents the danger to employees which the standard is

intended to prevent.’” Shimmick, 12 Wn. App. 2d at 785 (internal quotation

marks omitted) (quoting Sec. of Labor v. Evergreen Techs., Inc., 18 BNA OSHC

1528, 1998 WL 518250, at *7, 1998 OSAHRC LEXIS 68, at *17 (No. 98-0348)).

Notably, “the Department need not prove actual employee exposure to prove a

serious violation.” Shimmick, 12 Wn. App. 2d at 785. “Rather, an employer

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No. 82021-4-I/11

exposes its workers if they ‘were exposed to, or had access to, the violative

condition.’” Shimmick, 12 Wn. App. 2d at 785 (internal quotation marks omitted)

(quoting Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App.

906, 914, 83 P.3d 1012 (2003)). As such, “[t]he Department must show by

‘reasonable predictability that, in the course of [the workers’] duties, employees

will be, are, or have been in the zone of danger.’” Shimmick, 12 Wn. App. 2d at

785 (internal quotation marks omitted) (alteration in original) (quoting Mid

Mountain Contractors, Inc. v. Dep’t of Labor & Indus., 136 Wn. App. 1, 5, 146

P.3d 1212 (2006)).

Substantial evidence supports the Board’s finding that Hofmann was

exposed to a fall hazard when he detached from his fall protection equipment.

The ninth level of the structure was approximately 90 feet above ground level. A

McClone employee testified that fall protection equipment was required on the

northern section of level nine because “[t]here might be areas where, in this

building for instance, underneath, the piers had not been completely supported.”

Indeed, prior to realizing that Estores had fallen, How “heard a really loud crash,

like something was falling apart.” How ultimately attributed this sound to plywood

decking on the ninth level breaking. After hearing the crashing sound, How

approached the north core, “looked down, . . . [and] s[aw] Ray down below inside

the core.” How then informed Hofmann that Estores had fallen.

Hofmann testified that, after being informed that Estores had fallen, he

“stopped tying off” by taking his “lanyard off the rebar.” How testified that, when

Hofmann detached from his fall protection equipment, Hofmann was “[r]oughly

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No. 82021-4-I/12

about 10 feet” from the leading edge.8 Hofmann stated that he then “started

booking it downstairs” in order to check on Estores. From this evidence, a fair-

minded person could find that Hofmann, without being attached to a fall

protection system, traversed a structure that had already proved to be not fully

supported. Therefore, substantial evidence supports the Board’s finding that

Hofmann was exposed to a fall hazard.

Central Steel suggests that the Board’s finding that Hofmann was exposed

to a fall hazard is not supported by substantial evidence because Hofmann was

reacting to an unforeseeable emergency situation when he detached from his fall

protection equipment.9 However, whether Hofmann was reacting to an

emergency situation has no bearing on whether substantial evidence supports a

finding that Hofmann was exposed to a fall hazard.

Next, Central Steel asserts that the Board’s finding is not supported by

substantial evidence “because [Hofmann] was approximately 20 feet from the

edge when he unclipped from his fall protection, he was running away from the

8 Central Steel asserts that this “testimony was found to be not credible by the Board.”
Reply Br. of Appellant at 7. Contrary to Central Steel’s assertion, the Board did not find that this
testimony was not credible. With regard to How’s credibility, the Board’s opinion stated merely
that How’s “stated reason for his conclusion” that “he did not see . . . Hofmann tied off,” namely,
that “How was attached to the only yo-yo,” “is not persuasive in the context of all the testimony.”
However, the Board made no finding regarding the credibility of How’s testimony that Hofmann
was “[r]oughly about 10 feet” from the leading edge. Notably, How’s estimation of Hofmann’s
distance from the leading edge was determined “[a]t the end [of] when [How had] seen” Hofmann.
Hofmann testified that, immediately after How informed him that Estores had fallen, Hofmann
“took [his] lanyard off the rebar, and then . . . started booking it downstairs.” From this evidence,
a fair-minded person could find that Hofmann was approximately 10 feet from the leading edge
when he detached from his fall protection equipment.
9 Central Steel’s issue statements provide, in pertinent part:

A. Is the Board’s determination that Mr. Hofmann was exposed to a fall hazard
supported by substantial evidence when he was reacting to an emergency
situation when he unclipped from his fall protection, which Central Steel
could not have foreseen or prevented?
Br. of Appellant at 2 (bold face omitted).

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No. 82021-4-I/13

leading edge towards the finished southside’s stair tower after he unclipped from

his fall protection, and he had no work to do near the leading edge after he

unclipped from his fall protection.”10 However, contrary to Central Steel’s

assertion, the Board did not find that Hofmann was approximately 20 feet from

the leading edge when he detached from his fall protection equipment. Rather,

the Board found that Hofmann “was within 20 feet of the leading edge.” Finding

of Fact 8 (emphasis added). This finding is supported by substantial evidence.

Indeed, How testified that, when Hofmann detached from his fall protection

equipment, Hofmann was “[r]oughly about 10 feet” from the leading edge.

Given Hofmann’s proximity to the leading edge when he detached from

his fall protection equipment, substantial evidence supports a finding that

Hofmann was exposed to a fall hazard. Moreover, as already explained,

substantial evidence supports a finding that Hofmann was exposed to a fall

hazard when he traversed the northern section of level nine without being

attached to a fall protection system.

Accordingly, substantial evidence supports the Board’s finding that

Hofmann was exposed to a fall hazard.

Central Steel next contends that the Board erred by finding that

Hofmann’s knowledge of his own violation was imputed to Central Steel. This is

so, Central Steel asserts, because Hofmann was a journey-level worker and was

not a supervisor within Central Steel’s corporate hierarchy. Additionally, Central

10 Br. of Appellant at 20.

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No. 82021-4-I/14

Steel asserts that, even if Hofmann were a supervisor, his knowledge of his own

violation cannot be imputed to Central Steel. Again, we disagree. The Board did

not err by finding that Hofmann’s knowledge of his own violation was imputed to

Central Steel.

To establish a WISHA safety violation, the Department is required to

prove, in part, that the “‘employer knew or, through the exercise of reasonable

diligence, could have known of the violative condition.’” Potelco, 191 Wn. App. at

34 (quoting Frank Coluccio Constr. Co., 181 Wn. App. at 36-37). “[W]hen a

supervisor has actual or constructive knowledge of a safety violation, such

knowledge can be imputed to the employer.” Potelco, 194 Wn. App. at 440

(citing Danis-Shook Joint Venture XXV v. Sec’y of Labor, 319 F.3d 805, 812 (6th

Cir. 2003); N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d

Cir. 1996); Ga. Elec. Co. v. Marshall, 595 F.2d 309, 312 (5th Cir. 1979)).

Notably, an employer may delegate supervisory authority to an employee whose

job title is not that of a supervisor:

[The Occupation Safety and Health Review Commission] imputed
to the Company the regular boom truck operator’s actual
knowledge [of the violative condition], and from this knowledge it
imputed to the Company recognition of the hazard. The
[administrative law judge] found that the employer had delegated
supervisory authority to the regular boom truck operator, D.R.
Carroll. Although Carroll’s job title was not that of a superintendent
or foreman, there is sufficient evidence to show that he in fact
exercised supervisory authority. Therefore, D.R. Carroll’s
knowledge could be imputed to the Company.

Ga. Elec. Co., 595 F.2d at 321 (footnote omitted).11

11 When determining the standards provided under WISHA, “we may look for guidance to
decisions interpreting the Washington statute’s federal counterpart, the Occupational Safety and

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No. 82021-4-I/15

Here, the Board found that Hofmann was acting as a supervisor and that

his knowledge of his own safety violation was imputed to Central Steel:

Because Mr. Hofmann was acting as a supervisor, his knowledge
of his own violation is imputed to the employer. Central Steel knew
of the violative condition.

Finding of Fact 7.

Substantial evidence supports the Board’s finding that Hofmann was

acting as a supervisor. Indeed, Joshua Ruckle, a general foreperson employed

by Central Steel, testified that Hofmann was designated as the “supervisor” for

the day that Hofmann engaged in the safety violation:

Q. Did you know if there would be any foreman from
Central Steel for Nick [Hofmann] and Ray [Estores] on the following
day?
A. I knew that Nick was going to be the supervisor, yes,
for that day.

Additionally, Central Steel’s superintendent testified that Hofmann was

responsible for Estores:

Q. . . . As far as your understanding, Nick [Hofmann]
was the individual from Central Steel that was responsible for Ray
Estores on December 30th of 2017, correct?
A. Correct.

Finally, Hofmann testified that he was responsible for Estores:

Q -- I apologize[.] I was just referencing in the day that --
December 30th of 2017 --
A Uh-huh[.]
Q -- you were the senior employee that was on site, so on that
day you had the responsibility to mentor, correct --
A Right[.]
Q -- Ray, correct?
A Correct[.]

Health Act, 29 U.S.C. ch. 15.” Asplundh Tree Expert Co. v. Dep’t of Labor & Indus., 145 Wn.
App. 52, 60, 185 P.3d 646 (2008).

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No. 82021-4-I/16

Because Hofmann was delegated and exercised supervisory authority on

the day that he detached from his fall protection equipment, the Board did not err

by finding that Hofmann was a supervisor. See Ga. Elec. Co., 595 F.2d at 321.

Moreover, because Hofmann was acting as a supervisor, the Board did not err by

finding that his knowledge of the violation was imputed to Central Steel. See

Potelco, 194 Wn. App. at 440.

Central Steel asserts that the Board erred by imputing Hofmann’s

knowledge of the violation to Central Steel because Hofmann was a journey-level

worker and, as such, he was not a supervisor in Central Steel’s corporate

hierarchy. In support of this argument, Central Steel cites to the Occupational

Safety and Health Review Commission’s (the Commission) decision in Secretary

of Labor v. Mountain States Telephone and Telegraph Co., 9 BNA OSHC 2151,

1981 WL 18811 (No. 13266). In that case, the Commission stated that “a

corporate employer can only acquire knowledge through the knowledge of its

agents. Therefore, a corporation only has actual or constructive knowledge of a

violation if individuals in the corporate hierarchy have such knowledge.”

Mountain States Tel. & Tel. Co., 1981 WL 18811, at *3.

However, the Commission therein did not address whether an employer

may delegate supervisory authority to an employee who is not, by job title, a

supervisor within the employer’s corporate hierarchy. As already explained, an

employer may delegate such supervisory authority to an employee whose job

title is not that of a supervisor. See Ga. Elec. Co., 595 F.2d at 321. Because

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No. 82021-4-I/17

Hofmann was delegated supervisory authority, the Board did not err by finding

that he was a supervisor.

Central Steel next contends that the Board erred because, according to

Central Steel, a supervisor’s knowledge of his or her own violation cannot be

imputed to an employer. In support of this argument, Central Steel directs us to

several opinions wherein federal appellate courts have held that a supervisor’s

knowledge of his or her own violation may be imputed to the employer only if the

government also establishes that the violation was foreseeable to the employer.

See ComTran Grp., Inc. v. United States Dep’t of Labor, 722 F.3d 1304, 1316

(11th Cir. 2013); W.G. Yates & Sons Constr. Co. v. Occupational Safety & Health

Review Comm’n, 459 F.3d 604, 608-09 (5th Cir. 2006); Pennsylvania Power &

Light Co. v. Occupational Safety & Health Review Comm’n, 737 F.2d 350, 357-

58 (3d Cir. 1984); Mountain States Tel. & Tel. Co. v. Occupational Safety &

Health Review Comm’n, 623 F.2d 155, 158 (10th Cir. 1980); Ocean Elec. Corp.

v. Sec’y of Labor, 594 F.2d 396, 401 (4th Cir. 1979).

Notably, in each of these cases, the courts reasoned that, if the

government were able to establish employer knowledge merely by demonstrating

that a supervisor had knowledge of his or her own misconduct, then the

government would be impermissibly relieved of its burden to establish that the

violation was foreseeable.12

12In ComTran Group, the Eleventh Circuit explained:
We hold that the Secretary does not carry her burden and establish a prima facie
case with respect to employer knowledge merely by demonstrating that a
supervisor engaged in misconduct. A supervisor’s “rogue conduct” cannot be

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No. 82021-4-I/18

imputed to the employer in that situation. Rather, “employer knowledge must be
established, not vicariously through the violator’s knowledge, but by either the
employer’s actual knowledge, or by its constructive knowledge based on the fact
that the employer could, under the circumstances of the case, foresee the unsafe
conduct of the supervisor [that is, with evidence of lax safety standards].” W.G.
Yates & Sons Constr. Co., Inc., 459 F.3d at 609 n.8. Without such evidence, a
supervisor’s misconduct may be viewed as an isolated incident of unforeseeable
or idiosyncratic behavior, see Ocean Elec. Corp., 594 F.2d at 401, which is
insufficient, by itself, to impose liability under the Act.
722 F.3d at 1316.
In addition, in W.G. Yates & Sons Construction Co., the Fifth Circuit stated:
On the facts of this case, [the employer] can be charged with knowledge only if
[the supervisor’s] knowledge of his own misconduct is imputable to [the
employer]. The knowledge is imputed only if [the supervisor’s] conduct was
foreseeable. Consequently, the Secretary, not [the employer], bears the burden
to establish that the supervisor’s violative conduct was foreseeable. Yet, the
[administrative law judge] charged [the employer] with knowledge of [the
supervisor’s] misconduct without any inquiry as to whether the misconduct
should have been foreseen by [the employer]. Finding the Secretary had
established a serious violation (based only on [the supervisor’s] misconduct), the
[administrative law judge] then shifted the burden to [the employer] to establish
the defense of employee misconduct. By failing to conduct the foreseeability
analysis before imputing [the supervisor’s] knowledge, the [administrative law
judge] effectively relieved the government of its burden of proof to establish a
violation of the Act and placed on [the employer] the burden of defending a
violation that had not been established.
459 F.3d at 609 (footnote omitted).
Similarly, in Pennsylvania Power & Light Co., the Third Circuit held:
The Secretary seeks to discharge its burden of proving foreseeability by
demonstrating that [the employer’s] supervisor violated the OSHA regulation.
The Secretary would have us shift the burden to [the employer] to rebut the
inference of foreseeability by proving that [the supervisor’s] conduct was
unpreventable. . . . We . . . hold . . . that the Secretary may not shift to the
employer the ultimate risk of non-persuasion in a case where the inference of
employer knowledge is raised only by proof of a supervisor’s misconduct. The
participation of the company’s own supervisory personnel may be evidence that
an employer could have foreseen and prevented a violation through the exercise
of reasonable diligence, but it will not, standing alone, end the inquiry into
foreseeability.
737 F.2d at 357-58 (footnote omitted).
Likewise, in Mountain States Telephone and Telegraph Co., the Tenth Circuit stated:
Upon a showing of the supervisor’s knowledge, it is not unreasonable to require
the employer to defend by showing the failure to prevent violations by
subordinates was unforeseeable. But when the noncomplying behavior is the
supervisor’s own a different situation is presented. [The supervisor] knew he
personally violated the safety standards, of course; if we impute that knowledge
to the employer—and declare that now the employer must show the
noncomplying conduct was unforeseeable—we are shifting the burden of proof to
the employer. All the Secretary would have to show is the violation; the employer
then would carry the burden of nonpersuasion.
623 F.2d at 158.
Finally, in Ocean Electric Corp., the Fourth Circuit stated that “an imputation of a
supervisor’s acts to the company in each instance would frustrate the goals behind the Act.” 594
F.2d at 399. The court then explained that “the Commission placed the burden on the company
to show unforeseeability and unpreventability, and affirmed the citation because no evidence was

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No. 82021-4-I/19

However, under WISHA, it is well established that the Department does

not bear the burden to prove that an employee’s misconduct was foreseeable. In

Washington Cedar & Supply Co., 119 Wn. App. at 912, the court explained that

“there is a significant split among the federal circuit courts as to which party

should bear the burden of proof” with regard to the foreseeability of an

employee’s misconduct. The court then explained that “Washington . . . adopted

a statute laying out the elements of the unpreventable employee misconduct

defense that mirrors the language in Brock.” Wash. Cedar & Supply Co., 119

Wn. App. at 912 (emphasis added) (citing RCW 49.17.120(5)(a)(iv)).

In Brock, the Sixth Circuit recognized the split among federal circuit courts

regarding which party bears the burden to prove the foreseeability of an

employee’s misconduct. 818 F.2d at 1276. The court then explained: “We are

persuaded that the appropriate resolution of this question is to regard a claim of

unforeseeable employee misconduct as an affirmative defense to be proved by

the employer after the Secretary has made out a prima facie case of a violation

of the Act.” Brock, 818 F.2d at 1276 (first emphasis added).

Consistent with the holding in Brock, we have explained that the

Department does not bear the burden to prove that a violation was foreseeable:

Potelco asserts that [the supervisor] and his crew acted
unforeseeably when they disregarded Potelco’s repeated warnings
and instructions. However, the applicable standard here is whether
Potelco knew or should have known of the violative condition—not
whether the behavior that led to the violation was foreseeable—and
Potelco presents no evidence that it did not or could not have
known of the violation.

presented on the adequacy of [the employer’s] safety instruction program.” Ocean Elec. Corp.,
594 F.2d at 401. The court then held that “the Commission erred, and that the burden of proof
should be on the Secretary.” Ocean Elec. Corp., 594 F.2d at 401.

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No. 82021-4-I/20

Potelco, 194 Wn. App. at 440.

Because, under WISHA, the employer bears the burden to prove that the

misconduct of an employee was unforeseeable as a means of establishing an

affirmative defense, there is no concern that, by imputing a supervisor’s

knowledge of his or her own misconduct to the employer, the Department will be

relieved of its case in chief burden of proof. Indeed, following its decision in

Brock, the Sixth Circuit held that the government may establish employer

knowledge by demonstrating that a supervisor knew of his or her own violation.

Danis-Shook Joint Venture XXV, 319 F.3d at 812 (“[T]he knowledge of a

supervisor may be imputed to the employer. Because [the employee] was a

foreman and knew of his own failure to wear personal protective equipment, this

failure may be imputed to [his employer].” (citation omitted) (citing Brock, 818

F.2d at 1277)).

Additionally, the Seventh Circuit has held that a supervisor’s knowledge of

his or her own misconduct may be imputed to the employer when the supervisor

engaged in the misconduct while acting within the scope of his or her

employment:

Here, [the supervisor] knew that he was violating the rules when he
entered the dirty tank in order to kick loose a stuck valve so that he
could then drain the tank. His act was in furtherance of [the
employer’s] tank cleaning business. We thus see no problem with
the Commission’s decision to impute [the supervisor’s] knowledge
to [the employer].

Dana Container, Inc. v. Sec’y of Labor, 847 F.3d 495, 499-500 (7th Cir. 2017).13

13 In that case, the court explained that “[u]nder Commission precedent the Secretary can
satisfy his burden [to establish employer knowledge] without demonstrating any inadequacy or

20
No. 82021-4-I/21

Furthermore, sound policy supports a rule authorizing the imputation of a

supervisor’s knowledge of his or her own misconduct to an employer. Indeed,

the Commission has previously expressed disagreement with the Tenth Circuit’s

decision in Mountain States Telephone & Telegraph Co., 623 F.2d 155, wherein

the circuit court held that a supervisor’s knowledge of his own misconduct was

not imputable to the employer:

We have previously expressed our disagreement with the court’s
rationale and with a similar holding in Ocean Elec. Corp. v.
Secretary of Labor, 594 F.2d 396 (4th Cir. 1979). We believe that
the rationale for imputing a supervisor’s knowledge to his employer
is at least as compelling for violations the supervisor commits
himself as for violations committed by his subordinates. “Because
the behavior of supervisory personnel sets an example at the
workplace, an employer has—if anything—a heightened duty to
ensure the proper conduct of such personnel. Second, the fact that
a foreman would feel free to breach a company safety policy is
strong evidence that implementation of the policy was lax.”

Mountain States Tel. & Tel. Co., 1981 WL 18811, at *2 n.2 (citation omitted)

(quoting Nat’l Realty & Constr. Co. v. Occupational Safety & Health Review

Comm’n, 489 F.2d 1257, 1267 n.38 (D.C. Cir. 1973)).

Significantly, the express purpose of WISHA is “to create, maintain,

continue, and enhance the industrial safety and health program of the state,

which program shall equal or exceed the standards prescribed by the

Occupational Safety and Health Act of 1970.” RCW 49.17.010 (emphasis

added). Although there is a split among federal circuit courts as to whether an

defect in the employer’s safety program, if a supervisory employee has actual or constructive
knowledge of the violation.” Dana Container, 847 F.3d at 499 (citing Sec’y of Labor v. Dover
Elevator Co., 16 BNA OSHC 1281, 1993 WL 275823, at *7 (No. 91-862)). The court then
reasoned that “[t]his path for imputing knowledge is common in employment law” and that “[w]hen
an employee is acting within the scope of her employment, her knowledge is typically imputed to
the employer.” Dana Container, 847 F.3d at 499.

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No. 82021-4-I/22

employer’s knowledge of a violation may be established by demonstrating that a

supervisor knew of his or her own violation, the stated WISHA purpose is best

advanced by adopting the analyses of those courts holding that the government

regulator may establish employer knowledge by way of such a showing.

Accordingly, the Board did not err by determining that Hofmann’s

knowledge of his own violation was imputed to Central Steel.

Affirmed.

WE CONCUR: