Legacy Roofing, Inc. v. State, L & I

• Decision Date: 09 August 2005
• Docket Number: No. 31722-2-II.,31722-2-II.
• Citation: 119 P.3d 366,129 Wn. App. 356
• Court: Washington Supreme Court
• Parties: LEGACY ROOFING, INC., Appellant, v. STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

119 P.3d 366

129 Wn. App. 356

LEGACY ROOFING, INC., Appellant, v. STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 31722-2-II.

Court of Appeals of Washington, Division 2.

August 9, 2005.

Publication Ordered September 13, 2005.

COPYRIGHT MATERIAL OMITTED

Richard Martin Slagle, Slagle Morgan LLP, Seattle, WA, for Appellant.

Bourtai Hargrove, Attorney Gen Office, Olympia, WA, Terry Dale Peterson, Attorney at Law, Everett, WA, for Respondent.

QUINN-BRINTNALL, C.J.

¶ 1 In this appeal, residential roofing contractor Legacy Roofing Company, Inc.¹ raises three challenges to a Department of Labor and Industries (L & I) citation for its employee's failure to wear fall protection gear while on a roof at a job site, violations of WAC 296-155-24510.

¶ 2 For the first time on appeal, Legacy asserts (1) that L & I did not establish a prima facie case of a serious violation of the Washington Industrial Safety and Health Act (WISHA)² because it failed to prove that the company had actual or constructive knowledge of its employee's violative conduct; and (2) that the "effective in practice" prong of the "unpreventable employee misconduct" affirmative defense statute, RCW 49.17.120(5)(a), is unconstitutionally vague. Legacy also contends, as it did below, that the Board erred in determining that Legacy did not sustain its burden to prove the elements of an affirmative statutory "unpreventable employee misconduct" defense.

¶ 3 Because Legacy admitted below that its employee had violated WAC 296-155-24510 by failing to wear fall protection gear while working on a roof at one of its jobsites, we do not address Legacy's untimely claim that L & I failed to provide substantial evidence of employer knowledge. And because substantial evidence supports the Board's determination that Legacy failed to prove three elements of the statutory "unpreventable employee misconduct" defense, we do not address Legacy's constitutional vagueness challenge to one of these elements. Accordingly, we reject Legacy's appeal and affirm the citation and penalty.

FACTS

¶ 4 On December 30, 2000, at around 2:00 P.M., William P. Smith, a WISHA safety and health inspector, visited Legacy's worksite in McCormick Woods, a subdivision in Port Orchard, Kitsap County. Smith noticed that Victor Garcia, a Legacy employee, was working on the roof of the house without wearing fall protection gear.³ An unused fall protection lanyard was lying on the roof and a fall protection work plan was posted on the side of the building. Because the eave-to-ground height of the roof was over 11 feet, the employee's failure to wear fall protection gear while working on the roof was a violation of WAC 296-155-24510.⁴

¶ 5 On March 22, 2001, L & I cited Legacy for violating WAC 296-155-24510 and alleged that the violation was a repeat serious violation because Legacy had been cited for the same violation on January 15, 1999. L & I assessed a $600 penalty.

¶ 6 Legacy appealed the citation and penalty. L & I reassumed jurisdiction under RCW 49.17.140(3), which states, "[i]f the director [of L & I] reassumes jurisdiction. . . any redetermination shall be completed and corrective notices of assessment of penalty, citations, or revised periods of abatement completed within a period of thirty working days," and on May 8, 2001, L & I issued a corrective notice of redetermination (CNR) affirming the citation and penalty. Legacy then appealed to the Industrial Insurance Appeals Board ("Board") asserting an "unavoidable employee misconduct" defense. Administrative Record/Clerk's Papers (AR/CP) at 45.

¶ 7 An Industrial Appeals Judge (IAJ) heard Legacy's appeal on March 19, 2002. At the hearing, the IAJ heard testimony from Smith (L & I); Clifford E. Hurn, Legacy's general manager; and José Medrano, Legacy's bilingual safety compliance officer. Hurn and Medrano testified regarding Legacy's written safety policy; Legacy's procedure for communicating the policy to its employees; its procedures for discovering and reporting violations; and its "progressive disciplinary policy" of increasing fines and eventual termination of an employee after three violations.⁵

¶ 8 The IAJ agreed with Legacy that the violation was the result of unavoidable employee misconduct and vacated the CNR. L & I appealed, and in a December 4, 2002 Decision and Order, the Board reversed the IAJ's decision and reinstated the citation and penalty.

¶ 9 Legacy then appealed the Board's decision to the Kitsap County Superior Court under RCW 49.17.150(1). On March 30, 2004, the superior court affirmed the Board's decision to uphold the citation and penalty.

¶ 10 Legacy appeals.

ANALYSIS

VIOLATION

¶ 11 Legacy first contends that L & I failed to establish a prima facie WISHA violation because it did not present substantial evidence to prove that Legacy had actual or constructive knowledge that Garcia was working on the roof without the required safety gear. But Legacy waived this challenge by failing to timely raise it below.

¶ 12 On appeal to the superior court, Legacy's counsel stated: "As you can tell, [Legacy's] argument was unavoidable employee misconduct. There wasn't a question as to whether. . . the violation took place." Report of Proceedings at 2-3. Despite this concession, Legacy attempts for the first time in its brief on appeal to assert that L & I did not prove a WISHA violation occurred.

¶ 13 In general, we will not review claims of error not raised below. RAP 2.5(a). More importantly, RCW 49.17.150(1) specifically limits appellate review of issues that an appellant did not first present to the Board: "No objection that has not been urged before the board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." RCW 49.17.150(1). See D.A. Collins Constr. Co. Inc. v. Sec'y of Labor, 117 F.3d 691, 695 (2nd Cir.1997) (employer did not raise the issue of the Secretary's prima facie case in its petition for review waiving this argument on appeal); see also Dep't of Labor & Ind. v. Nat'l Sec. Consultants, Inc., 112 Wash.App. 34, 37, 47 P.3d 960 (2002) (holding Occupational Safety and Health Act preemption claim could not be raised on appeal because it was not argued before the Board). Legacy does not argue that extraordinary circumstances excuse its failure to timely object and, particularly in light of its counsel's concession that the violation occurred, none appears in the record before us. Legacy has failed to preserve its challenge to L & I's alleged failure to present a prima facie case of Legacy's violation of WAC 296-155-24510, and we decline to review it.

AFFIRMATIVE DEFENSE

¶ 14 As it did below, Legacy contends that the Board erred in rejecting its statutory affirmative "unpreventable employee misconduct" defense.

¶ 15 In 1999, our state legislature provided an employer with a statutory affirmative "unpreventable employee misconduct" defense to certain WISHA violations. Once L & I makes a prima facie case that a violation has occurred (or the employer admits the violation), the employer may be relieved of responsibility for the violation by proving that it has:

(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.

RCW 49.17.120(5)(a); Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Ind., 119 Wash.App. 906, 911, 83 P.3d 1012 (2003), review denied, 152 Wash.2d 1003, 101 P.3d 866 (2004). The employer has the burden of proving the elements of this affirmative defense. See In re Jeld-Wen of Everett, No. 88 W144, Bd. of Indus. Ins. Appeals (Wash. Oct. 22, 1990) (citing Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.1987)).

¶ 16 Here, although the Board determined that Legacy proved it had devised an adequate safety program satisfying RCW 49.17.120(5)(a)(i), it also determined that Legacy had not satisfied the other three requirements of RCW 49.17.120(5)(a). Specifically, the Board found Legacy's defense failed in three respects: Legacy failed to prove that it had (1) adequately communicated the rules to its employees (RCW 49.17.120(5)(ii)); (2) made adequate efforts to discover violations of the safety rules (RCW 49.17.120(5)(a)(iii)); and (3) established effective procedures for enforcement of its program in practice (RCW 49.17.120(5)(a)(iv)).

¶ 17 On appeal, we review the Board's administrative decision directly, based on the record before the agency. Dep't of Labor & Indus. v. Denny, 93 Wash.App. 547, 550, 969 P.2d 525 (1999). And we apply a substantial evidence standard to our review of Legacy's proof of its unpreventable employee misconduct defense. See Wash. Cedar, 119 Wash.App. at 911, 83 P.3d 1012 (citing Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999)).

¶ 18 Under RCW 49.17.150(1), the "findings of the board or hearing examiner where the board has denied a petition or petitions for review with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." And "`[s]ubstantial 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). We accept the Board's unchallenged finding that the safety program Legacy had created, including work rules, training, and equipment designed to prevent the violation was "thoroughly outlined" and, therefore, adequate to satisfy RCW 49.17.120(5)(a)(i). But we review the record to determine whether Legacy presented substantial evidence of the other subsections of RCW 49.17.120(5)(a). Our review establishes that it...