Pro-Active Home Builders, Inc. v. Wash. State Dep't of Labor & Indus.
Decision Date | 07 August 2018 |
Docket Number | No. 51047-2,51047-2 |
Parties | PRO-ACTIVE HOME BUILDERS, INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
Court | Washington Court of Appeals |
Respondents, Washington State Department of Labor and Industries, filed a motion to amend this court's unpublished opinion filed on August 7, 2018, and a motion to publish. We grant the motion to amend the August 7, 2018, unpublished opinion as follows. Accordingly, it is
ORDERED that on page 5 of the opinion, the following text shall be deleted:
And the following language shall be inserted in its place:
It is further
ORDERED that the final paragraph in the opinion which reads "A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered." is deleted. And the opinion will now be published.
PANEL: Jj. Bjorgen, Lee, Melnick
/s/_________
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LEE, A.C.J. - Pro-Active Home Builders, Inc. (Pro-Active) appeals seven citations issued by the Department of Labor and Industries (Department) for violations of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. Pro-Active contends that substantial evidence does not support the Board of Industrial Insurance Appeals' (Board's) finding that Pro-Active had knowledge of the safety violations and the findings of fact do not support the Board's conclusion that Pro-active failed to prove the conduct was the result of unpreventable employee misconduct. We affirm.
Pro-Active installs siding and trim on new homes. Pro-Active contracted to install siding on two adjoining homes in Tumwater. The homes were two-story buildings that were over 10 feet high.
On January 13, 2014, one of Pro-Active's superintendents, John Hodges, visited the Tumwater site. Hodges observed a lead worker, Onofre Valadez Gomez, on the roof of one of the homes without safety equipment. He told Valadez to make sure he used his safety line to connect his harness to an anchor. Hodges considered this a verbal warning. Hodges then left Valadez in charge of safety at the site. Hodges testified that Pro-Active employees were trained in the proper use of scaffold and fall protections. Hodges also claimed the company held safety meetings and disciplined workers who violated safety protocol.
Later that day, Valadez constructed a scaffold that used a ladder as the walkway. Valadez was not trained in how to construct scaffold. The scaffold was potentially unstable and if it fell could cause death or serious injury.
While Valadez worked on the roof, Department inspector Raul De Leon arrived at the site and observed from his car Valadez walking on the roof without fall protection. Inspector De Leon also observed Valadez walk on the scaffold without fall protection. Valadez was in charge when De Leon visited the site. Pro Active admits that Valadez was exposed to fall hazards for not using a safety line while on the roof and while walking on the scaffold.
Inspector De Leon observed at the other home another employee, Martin Gonzalez Verdozco, on a scaffold that used a pump jack scaffold that was not secured to the ground with spikes. Gonzalez testified he erected the scaffold but could not recall if he used spikes. Inspector De Leon took pictures of the scaffold. Gonzalez testified that he could not see spikes in the pictures and that if there were spikes they would show in the picture. Gonzalez, who had worked for Pro-Active for two years, testified he never observed Pro-Active discipline an employee for safety violations other than Valadez on January 13, 2014.
Pro-Active's owner, Chad Hansen, claimed Pro-Active did not approve of the scaffold that Valadez was standing on and always used spikes to secure the scaffold to the ground
The Department cited Pro-Active for the following seven WISHA violations:
All violations are characterized as "serious" violations. Board Record (BR) at 69-72.
Pro-Active appealed to the Board, arguing that unpreventable employee misconduct excused its violations. The Board rejected Pro-Active's argument, deciding that Pro-Active did not prove that it took adequate steps to correct violations of its safety rules or enforced its safety program. The Board affirmed the citations.
Pro-Active appealed to the superior court, which also rejected its unpreventable employee misconduct defense. The superior court, however, remanded for a further finding of fact regarding employer knowledge. On remand, the Board entered findings of fact and conclusions of law, specifically finding that "Pro-Active Home Builders, Inc. had constructive knowledge of all seven serious violations because it could have discovered or prevented them by exercising reasonable diligence." Clerk's Papers (CP) at 11. The Board further found:
CP at 12 The Board concluded "Pro-Active Home Builders, Inc., does not meet the requirements for vacating this Corrective Notice of Redetermination . . . based on unpreventable employee misconduct." CP at 13.
Pro-Active again appealed to the superior court, which affirmed the Board's order. Pro-Active now appeals to this court.
Pro-Active argues the Department failed to prove it had actual or constructive knowledge of the violations, and, even if the Department did prove knowledge, Pro-Active should not have been fined because the actions were based on unpreventable employee misconduct. We disagree.
Appeals from the Board are governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. Steven Klein, Inc. v. Dep't of Revenue, 183 Wn.2d 889, 895, 357 P.3d 59 (2015). We review the Board's final order, rather than the superior court's decision, and we sit in the same position as the superior court. Freeman v. Dep't of Soc. & Health Servs., 173 Wn. App. 729, 736, 738, ...
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