Bd Roofing v. State Dol and Industries

• Decision Date: 24 April 2007
• Docket Number: No. 34886-1-II.,34886-1-II.
• Citation: 139 Wn. App. 98,161 P.3d 387
• Court: Washington Court of Appeals
• Parties: BD ROOFING, INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

161 P.3d 387

139 Wn. App. 98

BD ROOFING, INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 34886-1-II.

Court of Appeals of Washington, Division 2.

April 24, 2007.

Aaron Kazuo Owada, Law Offices of Aaron Owada and AMS Consu, Lacey, WA, for Appellant.

Bourtai Hargrove, Attorney at Law, Olympia, WA, for Respondent.

VAN DEREN, J.

¶ 1 BD Roofing, Inc. (BD) appeals the Board of Industrial Insurance Appeals' (Board) determination that the Department of Labor and Industries (Department) proved its prima facie case against BD for a repeat serious violation of failing to ensure that its employees use fall protection safety equipment. BD also claims that the Board erred in its conclusion that BD failed to prove effective enforcement of its safety program in practice, not just in theory, thus denying BD's affirmative defense of employee misconduct for a serious violation of the Washington Industrial Safety and Health Act (WISHA). Finally, BD alleges and, the Department agrees, that the Board's Industrial Appeals Judge (IAJ) erred by miscalculating the applicable penalty for the citation after both parties stipulated to a specific base penalty. The Department does not contest the trial court's correction of the penalty. Finding no other error, we affirm the Board's determinations and the penalty imposed by the trial court.

FACTS

¶ 2 On October 29, 2003, the Department's Compliance Safety and Health Officer, Larry Adams, observed four or five BD employees tearing old roofing material from a roof located at 7024 27th Street West, University Place, Washington. Although the workers were wearing harnesses, they had not secured the harnesses to the roof with lanyards and anchors as required by WAC 296-155-24510.¹ As Adams approached the work site, the workers climbed down from the roof. The first person Adams spoke with was Diego Valentino, the worker in charge of the site. Adams asked Valentino to show him the site specific fall protection work plan required by WAC 296-155-24505.² Valentino was unable to produce a fall protection work plan for the site, but completed a new work plan and posted it in Adam's presence.

¶ 3 Adams cited BD for a repeat serious violation of WAC 296-155-24510 for failing to ensure that employees exposed to a fall hazard of 10 feet or more used lanyards and anchors to prevent falls (item 1-1a). Adams also cited BD for a repeat serious violation of WAC 296-155-24505(1) for failing to ensure that the company completed a fall protection work plan for the site and failing to have the plan available for inspection on request (item 1-1b).

¶ 4 BD had received eight citations for violations of the same WAC standards during the previous three years. Seven included violations of both WAC 296-155-24505(1) and WAC 296-155-24510, while the eighth citation included a violation of only WAC 296-155-24505(1).³

¶ 5 During the Board hearing, Adams demonstrated how repeat violations increase the total penalty (violation of $1,000 with two prior repeat violations would be $1,000 × 3 = $3,000). The parties stipulated to a monetary penalty of $21,600, based on a repeat factor of eight.

¶ 6 Adams testified that he did not climb up on the roof to inspect the lanyards or anchors personally, but that Nelson informed him that she had climbed the ladder and looked at the roof. Nelson testified:⁴

So then I went up the ladder and looked on the roof, and was too nervous to go from the ladder on to the roof, because it was not stable in my opinion, because it was to a gutter that was loose and supported by one nail, and Jose when [sic] up on to the roof and held up the four anchors that had come with the roofing material, and they had just been left laying on the roof, and he held them up so that I could take photographs of them, and I was upset with the crew, because I had told them over and over, and not just on this site but others, that they need to be using the anchors, that they need to be tied off, that the lanyards had to be adjusted correctly, that ladders had to be secured, because they were creative in how they were attaching ladders from the ground to the roof or from roof to roof.

Certified Appeal Board Record Transcript (AR/Tr.) (Aug. 30, 2004) at 52-53. Asked whether she witnessed any improvements in BD's safety program over the course of her employment, she answered:

Some, but it was minimal. It was frustrating, because management wasn't really supporting. They were giving the lip service to a lot of it looking for documentation . . . [m]inimal improvement with the demonstration of safe roofing practices and that. There was minimal improvement, but getting cooperation of management was very difficult . . . It was just very frustrating. Anything that I would try to implement would be put off to the side. Either it costs too much for certificates, or it cost too much to put two more anchor points on to the roof, or they just wanted the daily visit documentation for the records, so that if they were to come to an appeal, they would have the documentation —

AR/Tr. (Aug. 30, 2004) at 68-69 (objections and rulings omitted). When asked about the workers' understanding of the safety regulations, Nelson stated that at least one of the crews would disregard the rules and only take directions to follow the rules from men, specifically BD president, Bruce Duschel, and comptroller, Jose Suarez.

¶ 7 Duschel testified that: (1) each of the employees at the work site the day of the WISHA inspection had gone through a safety orientation when they joined the company; (2) BD hired full-time safety inspectors to visit each job site daily and that the safety inspectors had the power to hire and fire employees for not obeying company safety rules; (3) BD used a fall protection plan and provided the plan in both English and Spanish; and (4) BD's safety policy, safety orientation, and daily inspections were in place at the time of the citation.

¶ 8 BD's vice president, Spencer Ross, testified that the weather at the site was windy on the day of the inspection and that, in his opinion, BD properly posted the site specific fall protection plan, but that the wind had blown it away. Ross also testified that BD's safety program was in effect when the Department issued this citation.

¶ 9 Suarez, testified about the safety training BD gives its new employees. He said that most of the employees speak only Spanish, but that BD does new-hire orientation in Spanish for those who need it.

¶ 10 Herbert Heinold, a safety consultant expert on WISHA regulations for fall protection,⁵ testified on BD's behalf that the site specific fall protection plan was legally adequate. He affirmed that BD's company policy included an accident prevention plan, accident investigation, safety training, meetings regarding tools and equipment, and meetings on protection. Additionally, Heinold indicated that he believed BD's safety program was effective in practice, but during cross-examination he acknowledged that he did not know whether BD consistently enforced its disciplinary program.

¶ 11 Following the hearing, the IAJ recommended that the Board affirm the fall protection violation, but vacate the fall protection work plan violation. The IAJ rejected BD's affirmative defense of employee misconduct for the fall protection violation, holding that although BD met the first three requirements of the affirmative defense, it failed to prove that it effectively enforced its safety program.

Although this employer has a policy giving the safety director authority to terminate employees on the discovery of safety violations, there was no demonstration by this employer of a progressive disciplinary program designed to correct the unsafe behavior and how such a program has been implemented absent an inspection by [the Department]. Without being able to prove such enforcement[,] the employer cannot prevail on this defense.

Appeal Board Record (AR) at 26. The IAJ indicated that by vacating the fall protection plan violation, the penalty would be reduced to $21,600.

¶ 12 The Board denied BD's petition for review, making the IAJ's proposed decision and order the final order of the Board. BD sought review in superior court, but on April 28, 2006, the trial court affirmed the Board's orders with modifications to correct the IAJ's miscalculation of the penalty. "Because violation 1-1b was vacated, there were only 7 repeat violations not 8, and the penalty should therefore be reduced to $18,900." Clerk's Papers (CP) at 23. The Department does not challenge this modification.

¶ 13 BD appeals.

ANALYSIS

I. KNOWLEDGE OF THE VIOLATIVE CONDITIONS

¶ 14 BD claims that the Department failed to establish the elements required by RCW 49.17.180(6) to sustain a finding of a serious violation. Specifically, BD claims that substantial evidence fails to support the conclusion that BD knew or could have known of the violative conditions with the exercise of reasonable diligence.

¶ 15 We determine "whether there is substantial evidence to support the Board's findings and whether the Board's conclusion of law is appropriate based on these facts. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise."⁶ Danzer v. Dep't of Labor & Indus., 104 Wash.App. 307, 319, 16 P.3d 35 (2000), review denied, 143 Wash.2d 1020, 25 P.3d 1019 (2001) (citations omitted).

¶ 16 RCW 49.17.050(2) requires the Department to adopt occupational health and safety standards that are at least as effective as those promulgated by the United States Secretary of Labor under the federal Occupational Safety and Health Act of 1970 (OSHA). We often consider decisions interpreting parallel federal OSHA regulations to determine what constitutes a WISHA violation. Adkins v. Aluminum Co., 110 Wash.2d 128, 147, 750 P.2d 1257, 756 P.2d 142 (1988). The purpose of WISHA and the regulations promulgated under it "is...