WASHINGTON CEDAR & SUPPLY CO., INC. v. STATE, DEPT. OF LABOR

• Decision Date: 23 December 2003
• Docket Number: No. 29666-7-II.,29666-7-II.
• Citation: 119 Wash.App. 906,83 P.3d 1012
• Court: Washington Court of Appeals
• Parties: WASHINGTON CEDAR & SUPPLY CO., INC., Appellant, v. STATE of Washington, DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

83 P.3d 1012

119 Wash.App. 906

WASHINGTON CEDAR & SUPPLY CO., INC., Appellant, v. STATE of Washington, DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 29666-7-II.

Court of Appeals of Washington, Division 2.

December 23, 2003.

Publication Ordered January 28, 2004.

Jerald A. Klein, Seattle, WA, for Appellant.

David Ira Matlick, Atty Gen Ofc, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

SEINFELD, J.

The Department of Labor and Industries (L & I) cited Washington Cedar and Supply (Washington Cedar) for failing to ensure that its employees were wearing fall restraints when they delivered materials onto the roof of a construction site. The Board of Industrial Insurance Appeals (Board) upheld the citation and the superior court affirmed the Board's ruling. Holding that (1) a partial panel of the Board had the power to review the citation; (2) the Board appropriately declined to apply the unpreventable employee misconduct defense; and (3) the L & I inspector correctly categorized the offense as a "repeat serious violation;" and finding no error in the Board's decision, we also affirm.

FACTS

Washington Cedar sells and delivers roofing materials to construction sites in Washington. On October 18, 1999, two Washington Cedar employees were delivering materials onto a roof at a construction site. The employee standing on the roof was not wearing fall restraints or fall arrest gear.

An L & I inspector arrived at the site and documented the employees' activities. L & I subsequently issued a citation to Washington Cedar for failing to ensure that its employees were wearing fall restraints when working at heights over 10 feet.

The inspector labeled the violation a "repeat violation" based on L & I records showing two prior fall protection violations by Washington Cedar within three years of the instance at issue. The inspector labeled the violation "serious" because she believed serious physical harm could result if a fall occurred at that height. RCW 49.17.180(6).

Washington Cedar appealed the citation to the Board. An Industrial Appeals Judge (IAJ) initially vacated the citation but on review by the Board, two of the three Board members considered the case and reinstated the citation. A superior court judge affirmed the Board's decision.

DISCUSSION

I. PARTIAL PANEL REVIEW UNDER RCW 49.17.140

On review of the IAJ decision, two of the three Board members signed a Decision and Order upholding Washington Cedar's citation. Washington Cedar argues that RCW 49.17.140 does not permit partial panel review. This is a matter of statutory construction, which we review de novo. Children's Hosp. & Med. Ctr. v. Dep't of Health, 95 Wash.App. 858, 864, 975 P.2d 567 (1999).

The Board hears two types of appeals: (1) industrial insurance appeals governed by RCW 51.52, and (2) Washington Industrial Safety and Health Act (WISHA) appeals governed by RCW 49.17. In this WISHA appeal, we look to RCW 49.17.140 to determine the required procedure for Board review. Under this statute, the Board may "make disposition of the issues in accordance with procedures relative to contested cases appealed to the state board of industrial insurance appeals." RCW 49.17.140(3).

This provision incorporates the controlling procedures for Board review under RCW 51.52.106. RCW 51.52.106 allows Board review "by a panel of at least two of the members of the board.... The decision and order of any such panel shall be the decision and order of the board." RCW 51.52.106; also see WAC 263-12-155. RCW 49.17.140 therefore permits partial panel review based on the incorporation of review procedures enumerated in RCW 51.52.106.

II. UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE

Washington Cedar asserts that the violative conduct of their employees was unpreventable and unforeseeable, and therefore they should not be held accountable. Under RCW 49.17.120(5), there is an affirmative defense of "unpreventable employee misconduct" that allows an employer to avoid liability upon the following showing:

(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.

We review whether Washington Cedar has met its burden as a question of fact under a substantial evidence standard. Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999). `"Substantial evidence' is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wash.2d 693, 712, 732 P.2d 974 (1987).

For help in deciding cases where there is an absence of state law on point, the Board looks to the Occupational Safety and Health Administration (OSHA) and consistent federal decisions. Adkins v. Aluminum Co. of America, 110 Wash.2d 128, 147, 750 P.2d 1257 (1988); 29 U.S.C. sec. 651 et seq. In 1990, the Board decided Jeld-Wen, and placed the burden of proving the elements of the affirmative defense on the employer. In re Jeld-Wen of Everett, Bd. of Indus. Ins. Appeals No. 88 W144 (October 22, 1990); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.1987).

While there is a significant split among the federal circuit courts as to which party should bear the burden of proof,¹ the Board specifically followed the 6th Circuit decision in Brock, which emphasized that the employer must show that the safety program is effective "in practice as well as in theory." 818 F.2d at 1277. Washington subsequently adopted a statute laying out the elements of the unpreventable employee misconduct defense that mirrors the language in Brock. RCW 49.17.120(5)(iv).

The Board determined here that Washington Cedar had not met RCW 49.17.120(5)(iv)'s requirement of effective enforcement. It based this decision on evidence showing Washington Cedar's prior fall protection violations and its failure to enforce elements of the safety program. Thus, substantial evidence supports the Board's decision.

Washington Cedar asserts that the Board wrongly interpreted RCW 49.17.120(5) as allowing the unpreventable employee misconduct defense only where the violation is characterized as an "isolated occurrence." But the Board's interpretation of RCW 49.17.120(5) was not this narrow.

We review an agency's statutory interpretation under an error of law standard, which allows us to substitute our interpretation of the statute for the Board's. St. Francis Extended Health Care v. Dep't of Soc. & Health Serv., 115 Wash.2d 690, 695, 801 P.2d 212 (1990). But we give substantial weight to an agency's interpretation of statutes and regulations within its area of expertise. St. Francis Extended Health Care, 115 Wash.2d at 695, 801 P.2d 212.

The "isolated occurrence" language stems from agency and judicial interpretation of the "effective enforcement" prong of the unpreventable employee misconduct defense. RCW 49.17.120(5)(iv). The Board and federal courts have concluded that in order for the enforcement of a safety program to be "effective," the misconduct could not have been foreseeable. Jeld-Wen, No. 88 W144; Brock, 818 F.2d at 1277 (stating that the violation must have been "idiosyncratic and unforeseeable"); Austin Bldg. Co. v. Occupational Safety & Health Review Comm'n, 647 F.2d 1063, 1068 (10th Cir.1981); Mineral Indus. & Heavy Constr. Group v. Occupational Safety & Health Review Comm'n, 639 F.2d 1289, 1293 (5th Cir.1981).

As a result, the Board has determined that prior citations for similar conduct may preclude the defense because those prior violations provide notice to the employer of the problem, thereby making repeat occurrences foreseeable. But it appears that the existence of prior violations does not absolutely bar use of the unpreventable employee misconduct defense; it merely is evidence that the employee conduct was foreseeable and preventable.

L & I classified Washington Cedar's two prior final violations as "fall protection" violations. This classification indicates that these violations were similar; therefore, the current citation was not an isolated occurrence. Although this fact may not constitute conclusive evidence that the employee misconduct was foreseeable and preventable, it does provide sufficient evidence to support the Board's conclusion. Further, it was supported by additional evidence that Washington Cedar was not effectively enforcing other elements of its safety program. Thus, Washington Cedar has not shown that the Board erred when it rejected the unpreventable employee misconduct defense.

III. ESTABLISHING A REPEAT, SERIOUS WISHA VIOLATION

Washington Cedar asserts that L & I has not made a prima facie case showing of a WISHA violation nor shown that the violation was "serious" or a "repeat" within the meaning of the regulations.

A. PRIMA FACIE CASE FOR A WISHA VIOLATION

Washington Cedar first argues that L & I has not made a prima facie case for a "repeat serious violation" of WAC 296-155-24510. In construing WISHA regulations, we may consider the federal counterpart, OSHA, and its judicial interpretation. Adkins, 110 Wash.2d at 147, 750 P.2d 1257. To demonstrate a prima facie serious violation of a safety standard under OSHA,

the Secretary must prove that (1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition, and (5) `there is a substantial probability that death or serious physical harm could result' from the violative condition.

D.A. Collins Constr. Co., Inc. v. Sec'y of Labor, 117 F.3d 691, 694 (2nd Cir.1997) (citations omitted) (quoting 29 U.S.C. sec. 666(k)). To establish a violation of...