Inland Foundry v. Department of Labor

• Decision Date: 24 April 2001
• Docket Number: No. 19759-0-III.,19759-0-III.
• Citation: 106 Wash.App. 333,24 P.3d 424
• Court: Washington Court of Appeals
• Parties: In re INLAND FOUNDRY COMPANY, INC., a Washington Corporation, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, State of Washington, Respondent.

24 P.3d 424

106 Wash.App. 333

In re INLAND FOUNDRY COMPANY, INC., a Washington Corporation, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, State of Washington, Respondent.

No. 19759-0-III.

Court of Appeals of Washington, Division 3, Panel Two.

April 24, 2001.

Publication Ordered May 29, 2001.

Eric K. Nayes, Spokane, for Appellant.

Anastasia R. Sandstrom, Assistant Attorney General, Seattle, for Respondent.

KATO, J.

The Department of Labor and Industries cited Inland Foundry Company, Inc., for failing to comply with several provisions of the Washington Industrial Safety and Health Act (WISHA) and assessed penalties. The Board of Industrial Insurance Appeals and the superior court upheld the citations and penalties. Claiming the citations failed to comply with statutory requirements and violated due process, Inland appeals. It also argues the regulations allegedly violated were unconstitutionally vague and the findings of fact and conclusions of law issued by the Board should have been stricken. We affirm.

On October 29, 1997, an Inland Foundry millwright was killed while doing maintenance work inside a mullor. Another employee was unaware that anyone was inside and turned it on. The mullor was vibrating and shaking. He turned it off, looked inside, and discovered the dead millwright.

The Department was contacted and conducted an opening conference for a fatality investigation as required by WISHA. The investigation revealed that Inland did not have a specific lockout/tagout safety program for the mullor in place. Such a system would have prevented the employee from starting the machine while another employee was inside it. William Skuse, the investigating officer, also found that Inland did not follow other WISHA safety regulations.

On April 16, 1998, Mr. Skuse conducted a closing conference with several representatives from Inland regarding the WISHA violations he discovered. On April 23, 1998, the Department cited Inland for 16 violations of WISHA. The citations alleged Inland's lockout/tagout, accident prevention, and confined space programs were all inadequate. The Department imposed a monetary penalty of $31,200 for these violations.

Inland appealed the citations. It then moved to vacate the citations, claiming they violated due process. Inland argued the citations lacked sufficient factual specificity to allow them to prepare a defense. The industrial appeals judge denied the motion to vacate.

Thereafter, the judge affirmed the citations. The Board adopted that decision and the superior court affirmed the Board. Inland filed its appeal directly to the Supreme Court, which transferred the case to the Court of Appeals.

Inland first complains that the citations do not comply with statutory requirements. RCW 49.17.120 grants the Department authority to issue a citation to an employer for violating a safety or health standard:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the statute, standard, rule, regulation, or order alleged to have been violated.

RCW 49.17.120(1) (emphasis added). The parties dispute what "describe with particularity" means.

In construing a statute, the court must give effect to the intent of the Legislature. Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 146, 750 P.2d 1257, 756 P.2d 142 (1988). RCW 49.17.120 is part of WISHA, whose stated purpose is "`to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington.'" Id. (quoting RCW 49.17.010). WISHA is to be liberally construed to carry out this purpose. When interpreting WISHA provisions, courts will also consider its federal counterpart, the Occupational Safety and Health Act (OSHA), and federal decisions interpreting OSHA. Id. at 147, 750 P.2d 1257, 756 P.3d 142.

Washington has not yet interpreted the "describe with particularity" language of RCW 49.17.120(1). But that language is identical to that used in 29 U.S.C. § 658(a). In the federal arena, a citation is sufficiently particular upon giving the employer notice of precisely what it did wrong and what it must do to correct the situation. Donovan v. Royal Logging Co., 645 F.2d 822, 828 (9th Cir. 1981). In other words, the citation must give reasonably particular notice so that the employer understands the charge being made and has an adequate opportunity to prepare and present a defense. Babcock & Wilcox Co. v. Occupational Safety & Health Rev. Comm'n, 622 F.2d 1160, 1164 (3rd Cir.1980); see also Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Rev. Comm'n, 660 F.2d 439, 448 (10th Cir.1981). The Occupational Safety and Health Review Commission adds to these definitions by considering external circumstances surrounding the violations.

The test of particularity is whether the citation provided fair notice of the alleged violation. In determining whether fair notice has been afforded, consideration may be given to factors external to the citation, such as the nature of the alleged violation, the circumstances of the inspection, and the employer's knowledge of his own business.

Sec'y of Labor v. Meadows Indus. Inc., Docket No. 76-1463, 1979 WL 8494 at *1 (Occupational Safety & Health Rev. Comm'n, Decision, September 7, 1979). See also Sec'y of Labor v. General Motors Corp., Docket No. 79-2510, 1980 WL 10217 at *2 (Occupational Safety & Health Rev. Comm'n, Decision and Order, May 14, 1980).

We agree with the federal cases and the Commission. A citation meets the factual specificity requirement if, after considering the circumstances surrounding the alleged violations, the employer understands what regulations it violated and is provided with an adequate opportunity to prepare and present a defense. The citations here met these requirements. Each citation listed the relevant inspection dates as October 29, 1997 through April 17, 1998. Each cited the regulation involved and specifically stated what the employer had failed to do. The citations informed Inland that it was being cited for violating several safety regulations, which violations were discovered by the Department pursuant to the mandatory fatality investigation. The Department conducted opening and closing conferences with Inland that explained the nature of the investigation and the violations discovered. The citations alerted Inland to the charges being made and provided it with adequate information to prepare and present a defense. The citations complied with RCW 49.17.120(1).

Inland also claims that the citations were untimely. RCW 49.17.120(4) provides that a citation must be issued within six months of the start of an investigation. The investigation began on October 29, 1997, the day of the accident. The citations were timely issued on April 23, 1998, within six months of the start of the investigation. Inland next contends the citations violated its due process rights. No Washington case has addressed due process and RCW 49.17.120(1), but federal courts have visited the issue with respect to 29 U.S.C. § 658(a). "Ideally the citation should provide the employer with notice of the Secretary's contentions pertinent to each of the three elements underlying a general duty violation." Whirlpool Corp. v. Occupational Safety & Health Rev. Comm'n, 645 F.2d 1096, 1098-99 (D.C.Cir. 1981). When considering this language, the Tenth Circuit stated:

Although we agree that this interpretation states the ideal, it does not state the due process minimum. The D.C. Circuit itself has acknowledged "the familiar rule that administrative pleadings are very liberally construed." National Realty & Construction Co. Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C.Cir.1973). As Professor Davis has stated, "The most important fact about pleadings in the administrative process is their unimportance." 3 K. Davis, Administrative Law Treatise § 14:11 at 46 (2d ed.1980). An OSHA citation must give reasonably particular notice so that the cited employer will understand the charge being made and will have a full and fair opportunity to prepare and present a defense.

Baroid, 660 F.2d at 448. Given this language, it is fair to say a citation that is sufficiently particular satisfies due process. The citations here were specific and gave reasonably particular notice to Inland to understand the charges made. They also gave the company a full and fair opportunity to prepare and present a defense. Inland was afforded due process.

Inland contends the following provisions of the Washington Administrative Code are vague and therefore violate due process: (1) WAC 296-24-040(1)(a)(ii); (2) WAC 296-24-040(1)(a)(iv); (3) WAC 296-24-045(5)(b); (4) WAC 296-24-045(5)(c); (5) WAC 296-24-07501(2)(b); (6) WAC 296-24-11005(4)(b)(ii); (7) WAC 296-24-11005(4)(b)(iii); (8) WAC 296-24-11005(4)(b)(iv); (9) WAC 296-24-11005(5)(a); (10) WAC 296-24-11005(6)(a); (11) WAC 296-24-11005(7)(a)¹; (12) WAC 296-24-11005(9); (13) WAC 296-24-11007(1)(c); (14) WAC 296-24-11007(3)(a); (15) WAC 296-24-11005(7)(d); and (16) WAC 296-62-14110(4).²

A duly adopted regulation is presumed constitutional. Longview Fibre Co. v. Dep't of Ecology, 89 Wash.App. 627, 632, 949 P.2d 851 (1998). The party raising a vagueness challenge bears the heavy burden of proving the regulation's unconstitutionality beyond a reasonable doubt. Id. at 632-33, 949 P.2d 851.

"A regulation is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and disagree as to its application." Id. at 633, 949 P.2d 851 (citing Keene v. Board of Accountancy, 77 Wash.App. 849, 854, 894 P.2d 582, review denied, 127 Wash.2d 1020, 904 P.2d 300 (1995)). But a regulation does not have to satisfy impossible standards of specificity. A regulation need not provide a person with the ability to predict with "`complete certainty'" whether it proscribes a particular course of conduct. Id. (quoti...