| IN RE: COBRA ROOFING SERVICES, INC. | ) | DOCKET NO. 00 W0760 |
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| CITATION & NOTICE NO. 303201669 | ) | DECISION AND ORDER |
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- APPEARANCES
- Employer, Cobra Roofing Services, Inc., by
- McCormick, Dunn & Black, P.S., per
- Kevin W. Roberts
- Employees of Cobra Roofing Services, Inc.,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- G. Ward McAuliffe, Assistant
The employer, Cobra Roofing Services, Inc., filed an appeal with the Board of Industrial Insurance Appeals on July 3, 2000, from a Corrective Notice of Redetermination of the Department of Labor and Industries dated June 21, 2000. The Corrective Notice of Redetermination affirmed a serious repeat violation (Citation 1, Item 1) of WAC 296-155-24510, and an assessed penalty of $3,200; affirmed a serious violation (Citation 2, Item 1) of WAC 296-155-480(2)(a), and an assessed penalty of $640; affirmed a serious violation (Citation 2, Item 2) of WAC 296-155-24515(4)(f), and an assessed penalty of $1,360; and affirmed a general violation (Citation 3, Item 1) of WAC 296-155-505(2)(h), without penalty (total assessed penalties of $5,200). AFFIRMED AS MODIFIED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued on July 30, 2001, in which the Corrective Notice of Redetermination of the Department dated June 21, 2000, was affirmed as modified.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and the rulings are affirmed.
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto, the Employer's Response to Department's Petition for Review, and a careful review of the entire record before us, we are persuaded that with regard to Item 1-1, the violation of WAC 296-155-24510 should indeed be affirmed, and further, that the penalty attached to this violation should be [2] doubled to reflect that a previous violation occurred. Moreover, with regard to Item 2-1, we hold that the facts presented are sufficient to establish a violation of WAC 296-155-480(2)(a). In all other respects we agree with our industrial appeals judge's Proposed Decision and Order.
As a preliminary matter, we wish to note that the employer has filed a motion for attorney fees and costs, pursuant to RCW 4.84.350(1). That statute provides that a court shall award a qualified party that prevails in judicial review of an agency determination, fees and expenses, including reasonable attorney's fees, unless the court finds that the agency action was substantially justified. We do not believe that our review of the Department of Labor and Industries action satisfies the definition of judicial review as contained in that statute. Therefore, we do not believe the statute was intended to apply to proceedings before the Board of Industrial Insurance Appeals. We thereby decline to determine whether the employer is entitled to attorney's fees and costs under this statute. Pursuant to RCW 4.84.340, judicial review is indicated to be as defined by RCW 34.05, which is Washington's enactment of the Administrative Procedures Act (APA). The APA, however, does not provide a specific definition of the term judicial review, although it devotes Part V of the act to judicial review and civil enforcement. These are sections .410 through .598 of Chapter 34.05. Pursuant to RCW 34.05.030(2)(a), the provisions of Washington's version of the APA do not apply to proceedings before the Board of Industrial Insurance Appeals. Because of this exclusion, we conclude the provisions of RCW 4.84.350 do not apply to proceedings before the Board. They apply only to proceedings which fit the APA construction of judicial review as provided by RCW 34.05.410-.598.
The facts in this matter are well set forth in the Proposed Decision and Order, and we shall only repeat them as necessary to explain the basis for our decision. With regard to Item 1-1, we completely agree with our industrial appeals judge in that not only did a violation of WAC 296-155-24510 occur, we also agree that the employer failed to establish the occurrence of unpreventable employee misconduct. However, our industrial appeals judge determined that the Department failed to establish a basis for doubling the penalty, as it failed to do more than simply establish that the firm had previously been cited for violation of the same rule.
In determining that the Department was not justified in multiplying the base penalty by a factor of 2, our industrial appeals judge relied on Commissioner of Labor & Industry v. Bethlehem Steel Corp., 684 A.2d 845, 344 M. D. 17 (1966). In Bethlehem Steel, the court determined that to establish a basis for multiplying the base penalty due to repeat violations, there must be a substantial similarity of violative elements between the current and prior violations. As such, our [3] industrial appeals judge determined that in order to establish a repeat violation for purposes of multiplying the base penalty, the Department must present evidence that the two violations were substantially similar.
We are, however, mindful of WAC 296-27-16001(9), in effect at the time of this violation. WAC 296-27-16001(9) defined "repeat violation" as:
any violation of a standard or order when a violation has previously been cited to the same employer when it identifies the same type of hazard.
It is important to note that the federal standard focuses on the behavior, while the Washington regulation focuses on the hazard caused by the behavior. Certainly, WAC 296-155-24510 encompasses many different types of situations. It addresses use of fall protection, types of adequate personal fall protection devices, safety nets, and more. However, the entire regulation identifies the same hazard: that of falling 10 feet or more. We do not see any reason to refer to federal standards when the state standard is in place and is valid on its face. Accordingly, we believe that the evidence presented establishes the existence of a repeat violation.
We note also that Item 1-1 of this Citation and Notice, as well as the previous violation, involves a violation of WAC 296-155-24510, and not one of the subsections. The first part of the regulation is as follows:
When employees are exposed to a hazard of falling from a location 10 feet or more in height, the employer shall ensure that fall restraint, fall arrest systems or positioning device systems are provided, installed, and implemented according the following requirements.
Clearly, this speaks simply to exposing employees to a fall hazard of 10 feet or more. The section is no more specific than this. There may well be other regulations that deal with more than one hazard, and thus evidence that the firm has violated that regulation, may, without more, be insufficient. In this instance, however, we believe that the evidence presented adequately establishes a repeat violation. We would thus affirm Item 1-1, and find that it was appropriately determined to have a severity of 6 and a probability of 2, resulting in a base penalty of $2,000. From this base penalty we would deduct as adjustments $400 for "good" good faith (as modified at the hearing), and $800 for the size of the employer, for a total penalty of $800. In accordance with our decision herein, we hold that it is appropriate to double this penalty, for a total penalty of $1,600 for Item 1-1.
With regard to Item 2-1, the firm was cited for violation of WAC 296-155-480(2)(a), which requires a firm, when using portable ladders to access an upper landing surface, to ensure that the [4] ladder side rails extend at least 3 feet above the upper landing surface to which the ladder is used to gain access. The inspector determined that there were two instances of this violation. In one instance, although the ladder's side rails did not extend above the top of the parapet, the ladder was secured, which obviates the need for the extension of the side rails. In the other instance, however, the ladder was not secured. Our industrial appeals judge determined that while the ladder did not extend 3 feet past the top of the parapet, it did extend 3 feet past the roof, and that the roof was the "upper landing surface" for purposes of the regulation.
However, the last sentence of that regulation states, "In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder to slip off its support". This suggests that the purpose for the regulation is to have 3 feet above the top of the landing surface, so that the ladder will not slip. Clearly, it is the top of the parapet that bears the weight of the ladder, and it is the first surface to which the worker, as well as the top of the ladder, would come into contact. As such, we believe that the upper landing surface is the top of the parapet, not the roof 3 feet below. Accordingly, we believe that the Department has made a prima facie case that at least one of the ladders in use violated WAC 296-155-480(2)(a).
With regard to the penalty for Item 2-1, we agree with the Department's assessment. That is, a severity of 5, as this involved a fall of over 10 feet, and a probability of 1, as this involved good weather conditions and experienced employees. This equates to a base penalty of $1,600, which was adjusted as follows: less $320 for "good" good faith, less another $640 for size, and with no modification for history, resulting in a total penalty assessment for Item 2-1 of $640.
In accordance with the foregoing, we would affirm the violation specified in Item 1-1, as well as the attached penalty, affirming the violation specified in Item 2-1 as well as the attached penalty, vacating Item 2-2 and affirming Item 3-1, with no penalty. Corrective Notice of Redetermination No. 303201669 is hereby affirmed as modified, with a total penalty assessment of $2,240.
FINDINGS OF FACT
1. On February 22, 2000, the Department of Labor and Industries conducted an inspection of a job site of the employer, Cobra Roofing Services, Inc., located at Lincoln Middle School, in Clarkston, Washington.
On May 8, 2000, the Department issued Citation and Notice No. 303201669, which alleged a serious repeat violation (Citation 1, Item 1) of WAC 296-155-24510, set an abatement date of February 22, 2000, and assessed a penalty of $3,200; a serious violation (Citation 2, Item 1) of WAC 296-155-480(2)(a), set an abatement date of February 22, 2000, and assessed a penalty of $640; a serious violation (Citation 2, Item 2) of WAC 296-155-24515(4)(f), set an abatement date of [5] February 22, 2000, and assessed a penalty of $1,360; and a general violation (Citation 3, Item 1) of WAC 296-155-505(2)(h), and set an abatement date of February 22, 2000, without an assessment of a monetary penalty. The total penalty assessed was $5,200.
On May 16, 2000, the employer filed a Notice of Appeal to Citation and Notice No. 303201669. Thereafter, the Department timely reassumed jurisdiction, and on June 21, 2000, the Department issued Corrective Notice of Redetermination No. 303201669, which: affirmed the serious repeat violation (Citation 1, Item 1) of WAC 296-155-24510, and an assessed penalty of $3,200; affirmed the serious violation (Citation 2, Item 1) of WAC 296-155-480(2)(a), and an assessed penalty of $640; affirmed the serious violation (Citation 2, Item 2) of WAC 296-155-24515(4)(f), and an assessed penalty of $1,360; and affirmed the general violation (Citation 3, Item 1) of WAC 296-155-505(2)(h), without penalty. The total penalty assessed was $5,200.
On July 3, 2000, the Board of Industrial Insurance Appeals received the employer's Notice of Appeal from the Corrective Notice of Redetermination dated June 21, 2000. The appeal was assigned Board Docket No. 00 W0760.
2. On February 22, 2000, Cobra Roofing Services, Inc., was engaged in a re-roofing project at Lincoln Middle School, in Clarkston, Washington. The project involved work on a multi-level, flat roof. The Cobra Roofing employees at this work site were Dave Watkins, Mike Johnson, Jeremy Fields, and their foreman, Todd Bates.
3. On February 22, 2000, employee Jeremy Fields was working on a roof providing hand signals to a forklift operator below. He was working near the edge of the roof and was exposed to the hazard of fall from a height of 10 feet or more, and was not wearing any fall protection equipment or otherwise protected by a fall restraint system.
4. On February 22, 2000, employees Dave Watkins and Mike Johnson were working on and near the corner of the roof and were exposed to the hazard of a fall from a height of 10 feet or more. They were also not wearing any fall protection equipment or otherwise protected by a fall restraint system. There was a parapet wall extending from the roof edge, but in the location where they were working it was less than 36 inches in height, and was therefore an inadequate guardrail system.
5. On December 13, 1999, Cobra Roofing Services, Inc., was cited by the Department of Labor and Industries for a violation of WAC 296-155-24510. No other details concerning the nature of the violation, or the conduct giving rise to the citation, are known. [6]
6. In addition to preparing an on-site fall protection plan, Cobra Roofing Services, Inc., provides employees with a written safety program, provides safety training with respect to fall protection, and holds weekly safety meetings, at which fall protection issues are discussed. Cobra Roofing Services, Inc., has a progressive discipline program to discipline employees for violation of safety rules, including fall protection safety rules, which includes verbal warnings, written warnings, and possible termination. Its work sites are also subject to safety inspections by Cobra Roofing employees and others to determine if safety violations are occurring. However, on February 22, 2000, there was a breakdown in communication concerning fall protection safety requirements between management and the employees, as evidenced by the fact three employees, within a period of hours, committed fall protection violations. Three fall protection violations would not occur within a period of hours absent some failure on the part of Cobra Roofing Services, Inc., to provide an effective fall protection program, and the violations cannot be attributed to unexpected and unpreventable misconduct on the part of its employees.
7. On February 22, 2000, Cobra Roofing Services, Inc., was in violation of WAC 296-155-24510, in that employees of Cobra Roofing Services, Inc., were working at a height of 10 feet or more without required fall protection. This was a serious violation because it presented a fall hazard from which there was a substantial probability that death or physical harm could result from the failure to properly use fall restraint protection. This violation presented severity of 6, a probability of injury of 2, for a gravity of 12. An appropriate base penalty for this violation would be $2,000. From this base penalty a deduction of $400 should be made for the employers "good" good faith, and a deduction of $800 should be made for the size of the employer (26 to 100 employees). An appropriate penalty for this violation is therefore $800. The hazard(s) to which employees were exposed in the citation of December 13, 1999, are the same as the hazards to which the firm's employees were exposed in Item 1-1, or violation of WAC 296-155-24510. The penalty for Item 1-1 should thus be doubled, for a total penalty of $1,600.
8. On February 22, 2000, Cobra Roofing Services, Inc., had placed a ladder against a wall of the building where work was being performed, in order to allow employee access to the roof. This ladder extended less than 3 feet above the top of the parapet wall against which it was resting, although it did extend in excess of 3 feet from the top of the roof itself. The top of the parapet was the upper landing surface used by employees to gain access to the roof from this ladder.
9. On February 22, 2000, Cobra Roofing Services, Inc., engaged in the conduct described in Finding of Fact No. 8, which is in violation of WAC 296-155-480(2)(a). This was a serious violation because it presented a hazard from which there was a substantial probability that [7] death or physical harm could result from the failure to properly use or secure the ladder. This violation presents a severity of 5, as this involved a fall of over 10 feet, and a probability of 1, as this involved good weather conditions and experienced employees. An appropriate base penalty is $1,600, which should be adjusted as follows: less $320 for "good" good faith, less another $640 for size, and with no modification for history, resulting in a total penalty assessment for Item 2-1 of $640.
10. On February 22, 2000, roofing materials were being stored by Cobra Roofing Services, Inc., on the roof of Lincoln Middle School. The materials were on pallets, and some or all of them had been delivered and placed on the roof just prior to the lunch break. The materials extended beyond the warning line, which had originally been placed 6 feet from the roof edge. However, when the materials were placed on the roof, Jeremy Fields had moved the warning line in to make room for the materials and, as of the time of the inspection by the Department of Labor and Industries, had not moved the warning line back. It is therefore not known whether the materials were within 6 feet of the roof edge. Further, at no time during the course of the inspection by the Department were any employees of Cobra Roofing Services, Inc., working with these materials or in the area where they were stored. Following lunch, the employees of Cobra Roofing Services, Inc., were engaged in the process of protecting the roof from rain, and had not yet proceeded to use or unload the pallets of materials.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
- The employer, Cobra Roofing Services, Inc., did violate the provisions of WAC 296-155-24510 on February 22, 2000 (Citation 1 Item 1), in that employees of Cobra Roofing Services, Inc., were working at a height of 10 feet or more without required fall protection. This was a serious violation because it presented a fall hazard from which there was a substantial probability that death or physical harm could result from the failure to properly use fall restraint protection. This violation of WAC 296-155-24510 was not the result of unpreventable employee misconduct. Further, this violation was a repeat of a prior violation of WAC 296-155-24510, which occurred on December 13, 1999, as the hazard involved in the violation committed on December 13, 1999, is the same type of hazard that occurred on February 22, 2000. The penalty for the serious, repeat violation of WAC 296-155-24510, which occurred on February 22, 2000 (Citation 1, Item 1), is $1,600, and with this penalty the citation is affirmed, as modified. [8]
- Evidence that an employer was previously cited for a violation of WAC 296-155-24510 is, in this matter, sufficient to establish that a current violation is a repeat of the prior violation.
- The employer, Cobra Roofing Services, Inc., violated the provisions of WAC 296-155-480(2)(a) (Citation 2, Item 1) on February 22, 2000, in that the side rails of the ladders being used on the work site did not extend at least 3 feet (.9 m) above the upper landing surface. This was a serious violation because it presented a hazard from which there was a substantial probability that death or physical harm could result from the failure to properly use or secure the ladder. The penalty for the serious violation of WAC 296-155-480(2)(a) is $640.
- The employer, Cobra Roofing Services, Inc., did not violate the provisions of WAC 296-155-24515(4)(f)) (Citation 2, Item 2) on February 22, 2000, because either (1) it was not shown that on that date materials were stored within 6 feet of the roof edge; or (2) employees were not working with the materials or in the area where the materials were stored. This citation and the $1,360 penalty, therefore, are vacated.
- The employer, Cobra Roofing Services, Inc., did commit a general violation of the provisions of WAC 296-155-505(2)(h) (Citation 3, Item 1) on February 22, 2000. This citation, with no penalty, is affirmed.
- Corrective Notice of Redetermination No. 303201669, issued June 21, 2000, is affirmed as modified.
It is so ORDERED.
Dated this 16th day of January, 2002.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member