1 Up Floors Llc v. Department Of Labor & Industries, 80403-1

1Up Floors contracted with Tecton and subcontracted labor to Molina’s Flooring to replace apartment flooring in a 1960s Seattle building; Molina’s employee removed layers including vinyl tile.
A CSHO inspected after a Puget Sound Clean Air tip, observed tile debris and an unmasked worker, and took bulk samples that tested positive for chrysotile asbestos (1–3%).
1Up had no copy of the required good-faith asbestos survey, did not request one from Tecton, and did not inquire about the building’s age; work was not performed with required asbestos controls or PPE.
The Department cited 1Up for multiple WISHA violations (items 1‑1 to 1‑8 serious); 1Up stipulated to technical noncompliance and that it was the employer for WISHA purposes but disputed knowledge, exposure risk, and penalty calculations.
The Board affirmed the citation and penalties; the superior court affirmed on review. 1Up appealed to the Court of Appeals.
The Court of Appeals upheld the Board: substantial evidence supported constructive knowledge, employee exposure, and a finding of substantial probability of serious harm; penalty calculations and below-average good faith classification were not an abuse of discretion.

Issue	1Up's Argument	Department/Board's Argument	Held
Constructive knowledge of asbestos	1Up did not know and subcontractor removed tiles; 1Up did not expect tile removal	1Up failed to exercise reasonable diligence (no request for good‑faith survey, didn't ask building age)	Substantial evidence supports constructive knowledge; 1Up could have learned of asbestos with reasonable diligence
Employee exposure to hazard	Vinyl tile unlikely to release airborne asbestos; no proof of harmful airborne concentration	Worker handled and cleaned tile debris without proper PPE or controls; access and handling created zone of danger	Substantial evidence supports exposure (handling debris in enclosed space, inadequate PPE, no wet removal or monitoring)
Substantial probability of death/serious harm	Low likelihood of fiber release from vinyl tiles means low probability of serious harm	Asbestos is known to cause fatal diseases; even low likelihood still meets substantial probability standard for serious violation	Held that asbestos presence supports a substantial probability of serious harm under WISHA despite low likelihood of release
Penalty calculations (probability rating and good faith)	Probability rating of 2 and below‑average faith were excessive	Factors (untrained worker, inadequate PPE, no engineering controls, no survey) justify moderate probability and below‑average faith	Board did not abuse discretion in affirming probability = 2 and below‑average good faith adjustments

Shimmick Constr. Co., Inc. v. Dep’t of Labor & Indus., 12 Wn. App. 2d 770 (2020) (elements for a serious WISHA violation; explanation of "substantial probability")
Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194 (2011) (review standards and constructive knowledge analysis)
Netversant Wireless Sys. v. Dep’t of Labor & Indus., 133 Wn. App. 813 (2006) (broad interpretation of WISHA given asbestos hazards)
Danzer v. Dep’t of Labor & Indus., 104 Wn. App. 307 (2000) (gravity factor and base penalty calculation principles)
Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 236 (2018) (good‑faith considerations in penalty adjustments)
Ostrom Mushroom Farm Co. v. Dep’t of Labor & Indus., 13 Wn. App. 2d 262 (2020) (abuse of discretion standard for penalties)