J.E. Dunn v. Dept. of Labor & Industries, 56301-7-I.
| Decision Date | 16 April 2007 |
| Docket Number | No. 56301-7-I.,56301-7-I. |
| Citation | 156 P.3d 250,139 Wn. App. 35 |
| Parties | J.E. DUNN NORTHWEST, INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
| Court | Washington Court of Appeals |
Aaron Kazuo Owada, Law Offices of Aaron Owada and AMS Consu, Lacey, WA, for Appellant.
Bourtai Hargrove, Attorney at Law, Olympia, WA, for Respondent.
¶ 1 General contractor J.E. Dunn Northwest supervised the construction of the Olympus Towers, a high rise apartment complex in Seattle. The Department of Labor and Industries cited J.E. Dunn for several alleged violations of safety provisions of the Washington Administrative Code (WAC) enacted pursuant to the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW, in J.E. Dunn's oversight of its own employees and employees of subcontractors working on the Olympus Towers job site. The Board of Industrial Insurance Appeals (BIIA) upheld seven of the alleged violations. J.E. Dunn herein contests four of them.
¶ 2 We hold that the BIIA erred by placing on J.E. Dunn the burden of disproving an element of two of the alleged violations that were issued with regard to J.E. Dunn's oversight of employees of subcontractors. Accordingly, we reverse the BIIA's decision with respect to the two corresponding violations. We affirm the BIIA's decision with respect to the remaining two violations.
¶ 3 J.E. Dunn is a general contractor construction company. During 2001, J.E. Dunn supervised the construction of the Olympus Towers, a high-rise apartment complex in Seattle. Both J.E. Dunn employees and employees of several subcontractors worked on that construction.
¶ 4 In July 2001, an employee of one of the subcontractors fell to her death down an unguarded ventilation shaft. The incident prompted a safety inspection by the Department of Labor and Industries. As a result of that inspection, the Department issued a Citation and Notice of Assessment enumerating several violations of WAC safety regulations by J.E. Dunn in its oversight of both its own employees and employees of subcontractors working on the job site.
¶ 5 J.E. Dunn herein contests four of the violations enumerated: Item 4b and Item 5, which allege violations of safety regulations solely in J.E. Dunn's oversight of its own employees; and Item 2 and Item 3a, which allege violations of safety regulations in J.E. Dunn's oversight of employees of subcontractors. All four violations qualified as serious violations of the Department's safety regulations.
¶ 6 Item 4b and Item 5 were issued for alleged violations of WISHA safety regulations solely regarding J.E. Dunn's oversight of its own employees.
¶ 7 Item 4b was issued pursuant to WAC 296-155-24510, which requires employers to ensure that employees exposed to fall hazards of more than ten feet have a fall protection system in place. Item 4b provides, in relevant part:
The employer failed to ensure the two employees exposed to a fall, down a shaft, of about 30 feet had a fall protection system in place.1
¶ 8 Item 5 was issued pursuant to former WAC 296-155-483(7)(c),2 which required an employer to protect employees who are working on scaffolding that is more than ten feet above a lower level from falling. Item 5 provides, in relevant part:
The employer did not ensure that an employee on swing stage scaffolding was using proper fall protection. The fall protection was not in compliance with WAC 296-155-24510(2)(a)(v) in that his harness system was not rigged to minimize free fall distance to not more than 6 feet.3
¶ 9 Item 2 and Item 3a were issued for alleged violations of WISHA safety regulations regarding J.E. Dunn's oversight of employees of subcontractors.
¶ 10 Both items allege violation of WAC 296-155-100(1), which provides:
(1) It shall be the responsibility of management to establish, supervise, and enforce, in a manner which is effective in practice:
(a) A safe and healthful working environment.
(b) An accident prevention program as required by these standards.
Item 2 provides:
The general contractor did not establish, supervise, and enforce, in a manner, which was effective in practice, a safe and healthful environment in the following instances.
. . .
1. Two employees of subcontractor Henson Company, Inc. were exposed to a fall of about 30 feet without fall protection. Employees for JE Dunn created the hazard itself.
2. One employee of Window Installation Specialists, Inc. was exposed to a fall of about 32 feet without fall protection.4
Item 3a provides:
Management failed to enforce their site-specific Accident Prevention Program.
¶ 11 J.E. Dunn appealed the citation to the BIIA. After a hearing, the BIIA upheld the four alleged violations herein addressed.
¶ 12 In reviewing the safety violation in J.E. Dunn's oversight of employees of subcontractors, the BIIA placed on J.E. Dunn the burden of proving that it had complied with WAC 296-155-100(1) by establishing, supervising, and enforcing a safe and healthy work environment and accident prevention program that were effective in practice. The BIIA concluded that J.E. Dunn failed to satisfy that burden, and affirmed Item 2 and Item 3a.
¶ 13 J.E. Dunn appealed to the King County Superior Court, which affirmed the BIIA's decision. This appeal followed.
¶ 14 We review a decision by the BIIA directly, based on the record before the agency. Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wash.App. 356, 363, 119 P.3d 366 (2005). We review findings of fact to determine whether they are supported by substantial evidence and, if so, whether the findings support the conclusions of law. Inland Foundry Co. v. Dep't of Labor & Indus., 106 Wash.App. 333, 340, 24 P.3d 424 (2001). The BIIA's findings of fact are conclusive if supported by substantial evidence when viewed in light of the record as a whole. RCW 49.17.150(1); RCW 34.05.570(3)(e); Mid Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wash. App. 1, 4, 146 P.3d 1212 (2006). Substantial evidence is evidence "in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Holland v. Boeing Co., 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978).
¶ 15 We review issues of law, including matters of statutory construction, de novo. Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wash.App. 906, 912, 83 P.3d 1012 (2004) (Wash. Cedar I).
¶ 16 J.E. Dunn first contends that the BIIA erred by determining that the Department met its burden of establishing its prima facie case in regard to Item 4b and Item 5 for the violations of WISHA regulations in J.E. Dunn's oversight of its own employees. J.E. Dunn further contends that the BIIA erred by determining that J.E. Dunn failed to establish that those violations were due to unpreventable employee misconduct, an affirmative defense to WISHA regulation violations. Both contentions fail.
¶ 17 The WAC provisions pursuant to which J.E. Dunn was cited were promulgated under the authority of WISHA. The purpose of WISHA 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." RCW 49.17.010.
¶ 18 The duties of employers under WISHA are enumerated in RCW 49.17.060, which contains both a general duty clause and a specific duty clause. The general duty clause obligates employers to "furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees." RCW 49.17.060(1). The specific duty clause obligates employers to "comply with the rules, regulations, and orders promulgated under [WISHA]." RCW 49.17.060(2).
¶ 19 The Department is charged with the authority to promulgate regulations under WISHA, and to impose citations and penalties against employers for violating such regulations. RCW 49.17.050, .120 and .180. When alleging a violation of WISHA regulations against an employer, the Department bears the initial burden of proving the existence of that violation. WAC 263-12-115(2)(b); SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wash.2d 422, 433, 144 P.3d 1160 (2006); Wash. Cedar I, 119 Wash.App. at 914, 83 P.3d 1012.
¶ 20 RCW 49.17.180 mandates the assessment of a penalty against an employer when a proven violation is "serious." RCW 49.17.180(2). A "serious" violation of a WISHA regulation is defined as follows:
[A] serious violation shall be deemed to exist in a work place if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such work place, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
RCW 49.17.180(6) (emphasis added). When alleging a "serious" violation of a WISHA regulation, the Department bears the burden of proving both the existence of the elements of the violation itself and the existence of those additional elements of a "serious" violation enumerated in RCW 49.17.180(6). SuperValu, Inc., 158 Wash.2d at 433 n. 7, 144 P.3d 1160; Wash. Cedar I, 119 Wash.App. at 914, 83 P.3d 1012.
¶ 21 Accordingly, to establish its prima facie case in regard to a serious violation of a WISHA regulation, the Department must prove each of the following elements:
(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...
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