| IN RE: MT. BAKER ROOFING, INC. | ) | DOCKET NO. 05 W0549 |
| ) | ||
| CITATION & NOTICE NO. 308440205 | ) | DECISION AND ORDER |
| ) |
APPEARANCES:
Employer, Mt. Baker Roofing,
Inc., by
Stanislaw Ashbaugh, LLP, per
J. Robert Smith
Employees of Mt. Baker Roofing, Inc.,
None
Department of Labor & Industries, by
The Office of the Attorney General, per
Michael Hall, Assistant
The employer, Mt. Baker Roofing, Inc., filed a Notice of
Appeal with the Department of Labor and Industries on June 22, 2005, from
Citation and Notice No. 308440205, which was issued on June 9, 2005. In its citation and notice the Department
cited Mt. Baker Roofing, Inc., for a repeat serious violation of WAC
296-155-24510, with a penalty imposed of $33,000, and for a repeat serious
violation of WAC 296-155-24505(1), with no penalty imposed, for a total
penalty imposed of $33,000. The
Department transmitted the Notice of Appeal to the Board of Industrial
Insurance Appeals on June 24, 2005. The
Department's citation and notice is 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 to a Proposed
Decision and Order issued on August 9, 2006, in which the citation and notice issued by the Department was modified by
the industrial appeals judge to reflect that Item No. 1-1a, Mt. Baker Inc.'s
violation of WAC 296-155-24510, is a repeat serious violation, the repeat
violations should be listed as, a Board Order Denying Petition for Review dated
March 20, 2002, in relation to Citation and Notice No. 303103832,
Corrective Notice of Redetermination No. 3048323322, issued on March 8,
2002; and Citation and Notice No. 305686024, for a total penalty of $10,800;
and Item No. 1-1b should be designated a serious violation, with no repeats of
WAC 296-155-24505(1), for a total penalty of $10,800, and as modified, is
affirmed. All contested issues are
addressed in this order. [2]
The
Board has reviewed the evidentiary rulings in the record of proceedings and
finds that no prejudicial error was committed. The rulings are affirmed. The
matter was submitted by the parties by way of summary judgment.
On
March 17, 2006, the Department filed the Department of Labor and Industries' Motion
for Summary Judgment, the Declaration of Michael Hall in Support of
Department's Motion for Summary Judgment, and a copy of Exhibit CC, which
should have been filed with the Declaration of Michael Hall in Support of Department's Motion for Summary
Judgment. On March 24, 2006, the
Department filed a Memorandum in Support of Department's Motion for Summary
Judgment. On March 28, 2006, the
Department filed the Department's Response to Employer's Motion for Partial
Summary Judgment. On April 3, 2006, the
Department filed the Second Declaration of Michael Hall, Affidavit of Jon
Sinclair and Department's Reply Brief. On April 4, 2006, the Department filed the Declaration of Robert Parker,
and the Declaration of Keith Koskela.
On
March 17, 2006, the employer filed Employer Mt. Baker Roofing, Inc.'s Motion
for Partial Summary Judgment Excluding Evidence of Previously Settled
Citations, and the Declaration of J. Robert Smith in Support of Motion for
Partial Summary Judgment. On March 24,
2006, the employer filed Employer Mt. Baker Roofing, Inc.'s Response and
Opposition to Department's Motion for Summary Judgment, and the Declaration of
J. Robert Smith in Support of Employer's Response in Opposition to Department's
Motion for Summary Judgment. On March 31,
2006, the employer filed Mt. Baker's Reply to Department's Response to
Employer's Motion for Partial Summary Judgment, and the Declaration of J.
Robert Smith in Support of Employer's Reply Brief Re: Motion for Partial
Summary Judgment.
On
April 7, 2006, a hearing on the motions for summary judgment and partial
summary judgment was heard. At the April
7, 2006 hearing, the parties agreed that the pleadings in In re Mt. Baker Roofing, Dckt. No. 05 W1084, be considered in
deciding this appeal. On June 29, 2006,
the Department and the employer filed the Stipulation of Facts. Our Decision and Order is based upon a
careful review of the foregoing and the files and records in this appeal.
The
parties agree that the computation of the base penalty by the Department should
be modified to change the probability factor from a 4 to a 3, thus reducing the
base penalty from $5,500 to $4,500. The
resultant adjusted base penalty, which represents a reduction of 40 percent based
on the size of the company, should then be reduced from $3,300 to $2,700. The only issue remaining to be resolved is
the number of repeat violations used to increase the adjusted base penalty. [3]
The
Department seeks review of the Proposed Decision and Order issued on
August 9, 2006. The Department used
a total of nine previous violations as repeat violations under
WAC 296-800-35040, to assess an increased penalty for the violation cited
in the current citation and notice. In
his Proposed Decision and Order, the industrial appeals judge reduced the
number of prior violations, finding that only three qualified as repeat
violations, and reduced the penalty accordingly. The Department challenges the reasoning set
out in the Proposed Decision and Order, in which the industrial appeals judge rejected
six of the prior violations as repeat violations under
WAC 296-800-35040.
The
controversy in this case focuses on the definition of "final order"
under WAC 296-800-35040 and WAC 296-800-370. These WACs provide, as follows:
WAC
296-800-35040 Reasons for increasing civil penalty amounts.
. . .
Repeat Violations:
A
violation is a repeat violation if the employer has been cited one or more
times previously for a substantially similar hazard.
•WISHA
cites such violations if the final order for the previous citation was dated no
more than three years prior to the employer committing the violation being
cited.
•The adjusted base penalty will be multiplied by the
total number of citations with violations involving similar hazards, including
the current inspection.
•The maximum penalty cannot exceed $70,000 for each
violation.
WAC
296-800-370
Final order
Any of the following (unless an employer
or other party files a timely appeal):
•Citation and notice;
•Corrective
notice;
•Decision and order from the board of industrial
insurance appeals;
•Denial of petition for review from the board of
industrial insurance appeals; or
•Decision from a Washington State superior court,
court of appeals, or the state supreme court. [4]
Final order date
The
date a final order is issued.
In
the Proposed Decision and Order the industrial appeals judge accurately sets
forth the facts contained in this record, as well as the legal arguments
presented by both parties. We have
granted review because we disagree with the analysis set forth in the Proposed
Decision and Order regarding the definition of a final order under
WAC 296-800-35040 and WAC 296-800-370.
The
Department issued the current citation and notice in which it cited a violation
of WAC 296-155-24510 and WAC 296-155-24505(1). The Department alleged that there were nine
previous violations of the same or similar standard with final orders within
three years of the current violations. Under WAC 296-800-35040, which allows for an increase in the
penalty for repeat violations, the Department used the nine previous orders as
repeat violations and increased the penalty for the current violations.
The
nine previous orders break down into three categories. First, there are two earlier violations with
final orders that are not challenged by the firm. One is a citation and notice, which was not
appealed to this Board and thus became a final order. The second is a Proposed Decision and Order,
which was ultimately adopted by this Board and not appealed. Both final orders in these previous
violations are within three years of the current violations. These two earlier orders clearly meet the
requirements of WAC 296-800-35040 and WAC 296-800-370. The parties agreed that these orders can be
used as repeat violations on the current citation and the penalty increased
accordingly.
The
second category consists of dismissal orders issued by this Board. Here there are five previous citations and
notices, or corrective notices of redetermination, which were appealed to this
Board. These appeals were dismissed
following an agreement between the firm and the Department. The third category of orders consists of two
orders issued by this Board in which appeals from the citations and notices
were remanded to the Department of Labor and Industries.
In
the Proposed Decision and Order, our industrial appeals judge found that the
orders in which this Board dismissed the appeals, are not "final
orders" as contemplated by WAC 296-800-35040 and WAC 296-800-370. In addition, our industrial appeals judge
found that the date of the ”final order" for the purpose of determining
whether the violation is a repeat violation is the date of the citation and
notice or the date of the corrective notice of redetermination issued by the
Department. Our industrial appeals judge
found that the date of the citation and notices, and the corrective notice of
redetermination, were beyond the three-year period set forth in WAC 296‑800‑35040
and the violations, which were the subject of the dismissal orders issued by [5] this Board, cannot be used as
previous violations for repeat purposes in computing the increased penalty.
In
the Proposed Decision and Order, our industrial appeals judge found that the
Board orders remanding matters to the Department are not "final
orders" under WAC 296-800-35040 and WAC 296-800-370. Our industrial appeals judge then looked to
the action taken by the Department following the Board's order on remand to
determine whether a final order exists at the Department level. In one situation the Department took action
following the remand from the Board. Here the Department and the firm agreed to amend the citation and notice
following the remand from the Board and agreed that the violation could be used
as a repeat violation. On this citation
and notice, our industrial appeals judge found that based on the agreement, the
violation lies within the three‑year repeat period and can be used as a
repeat violation when computing the current penalty. On the remaining remand order from this
Board, our industrial appeals judge found that the Department took no action
following the remand, and hence there was no "final order" at the
Department. Absent any "final
order," the violation could not be used as repeat history in calculating
the current penalty. The end result of
the Proposed Decision and Order is that only three of the nine earlier
violations are used as history for computing repeat violations and increasing
the current penalty.
The
Department argues for a definition of "final order" under WAC
296-800-370, which includes the dismissal orders issued by this Board and the
orders issued by this Board in which the Board remanded the matter to the
Department. If the dates of these Board
orders are used as the date of the "final order," then all nine of
the previous violations would have "final orders" issued within the
three-year period set forth in WAC 296-800-35040 and all must be used as
repeat violations for calculating the increased penalty.
We
agree with the Department. The
definition of "final order" in WAC 296-800-370 includes decision and
orders from the Board of Industrial Insurance Appeals unless otherwise
appealed. The Board orders dismissing
the appeals, as well as the Board orders remanding to the Department following
the appeal are "final orders" of this Board. These orders terminated the proceedings. There can be no further action as
contemplated by WAC 296-800-370 from the Board's dismissal orders or orders on
remand to the Department. Therefore,
under the plain reading of WAC 296-800-370, these orders are "final
orders" for the purpose of calculating the penalty under WAC
296-800-35040. [6]
The
effect of following the Proposed Decision and Order is to effectively eliminate
a portion of the time in which the firm is exposed to the three-year repeat
violation penalty. The Department cannot
use the earlier violations during the pendency of an appeal at the Board
because they are not "final orders" as defined in WAC
296-800-370. Thus, a firm would be able
to appeal a corrective notice of redetermination or a citation and notice, hold
the matter at the Board level, and any period of time that the appeal was
pending at the Board would be subtracted from the three‑year period of
exposure for the repeat violations. The
firm could then move to dismiss the appeal and the Department would effectively
have lost a portion of the three-year period for repeat violations.
The Board orders
dismissing the prior appeals filed by the firm to the earlier citations and
notices and corrective notices of redetermination, as well as the orders from
this Board in which the Board remanded the matters to the Department, are
"final orders" under the definition as set forth in
WAC 296-800-370, and since the dates of the final orders are within the
three-year period set forth in WAC 296-800-35040, the Department was correct in
using the prior violations as repeat violations in computing the penalty. The citation and notice is affirmed.
FINDINGS OF FACT
1. On December 10, 2004, the
Department inspected a work site of Mt. Baker Roofing, Inc., in Bellingham,
Washington.
On June 9, 2005, the Department issued Citation &
Notice No. 308440205, alleging two
violations of the Washington Industrial and Safety and Health Act, Item No.
1-1a a repeat serious violation of WAC
296-155-24510, with a penalty of $33,000, and Item No. 1-1b, a repeat serious
violation of WAC 296-155-24505(1), with no penalty, for a total penalty of $33,000.
On June 22, 2005, the employer filed a Notice of
Appeal with the Department.
On June 24, 2005, the Department transmitted the
Notice of Appeal to the Board of Industrial Insurance Appeals.
On June 27, 2005, the Board issued a Notice of Filing
of Appeal pursuant to Washington Industrial Safety and Health Act, and assigned
the appeal Docket No. 05 W0549.
2. Mt.
Baker Roofing, Inc., is a roofing contractor. On December 10, 2004, it had two employees at a worksite in Bellingham,
Washington. On that day, the worksite
was inspected by Keith Koskela, a Compliance and Safety Health Officer with the
Department. At the time of Mr. Koskela's [7] inspection it was raining and
there was a wind of approximately 10 mph. He observed two Mt. Baker Roofing, Inc., employees, Rene Martinez and
Santos Ramirez, on a roof. They were
wearing fall protection harnesses, there was a fall arrest system secured to
the roof, but neither employee had his harness connected to the fall arrest
system. Mr. Martinez and Mr. Ramirez had been working for approximately 1 hour
and 40 minutes, at least part of that time at the edge of the roof without fall
protection because the distance from the edge of the roof to where they were
working was too far from the anchor. The
distance from the edge of the roof, where Mr. Martinez and Mr. Ramirez were
working to the ground was 22 feet.
3. At
the Mt. Baker Roofing, Inc.'s worksite inspected by Mr. Koskela, on December
10, 2004, Mt. Baker Roofing, Inc., had employees exposed to a fall hazard of
greater than 10 feet, without fall restraint, a fall arrest system, or a
position devise being implemented.
4. At
Mt. Baker Roofing, Inc.'s worksite, inspected by Mr. Koskela, on December 10,
2004, Mt. Baker Roofing, Inc., had a fall protection work plan, but it had not
been completed. In particular it did not
identify each area of the worksite where employees were assigned where fall
hazards of 10 feet or more exist, or provide information on how Mt. Baker
Roofing, Inc.'s employees were expected to protect themselves from fall
hazards.
5. Mt.
Baker Roofing, Inc., at the time of Mr. Koskela's inspection of Mt. Baker
Roofing, Inc.'s worksite on December 10, 2004, either knew or with the exercise
of reasonable diligence could have known that its employees were exposed to a
fall hazard from 10 or more feet without fall restraint, a fall arrest system,
or a position device system being implemented.
6. Mt.
Baker Roofing, Inc., at the time of Mr. Koskela's inspection on December 10,
2004, either knew, or with the exercise of reasonable diligence could have
known, that the fall protection work plan had not been completed.
7. On
December 10, 2004, at the Mt. Baker Roofing, Inc., worksite inspected by Mr.
Koskela, Rene Martinez was the lead worker who had supervisory authority at the
jobsite and was authorized to direct the work performed by Mr. Ramirez. Further Mr. Martinez was authorized to direct
Mr. Ramirez to use fall protection at the jobsite and to direct Mr. Ramirez to attach Mr. Ramirez's
safety harness to a lifeline anchored on the roof at the jobsite. [8]
8. If
a Mt. Baker Roofing, Inc. employee at the jobsite, inspected by Mr. Koskela, on
December 10, 2004, had fallen due to the failure to use adequate fall protection
there is a substantial probability that the fall would have resulted in serious
physical harm or death.
9. If a Mt. Baker Roofing,
Inc., employee had fallen at the worksite inspected by Mr. Koskela on December 10,
2004, as a result of failure to adequately complete the fall protection work
plan there is a substantial probability that the fall would have resulted in
serious physical harm or death.
10. The
Department, in determining the penalty for the violation it cited Mt. Baker Roofing, Inc., for in Item No.
1-1a, of Citation and Notice No.
308440205, correctly determined that the severity of the violation was a 6,
since a fall from 22 feet could cause a death or a permanent severe
disability. The probability however
should have been 3. The gravity of the
violation therefore is 18. Further, the
Department was correct in determining that Mt. Baker Roofing, Inc.'s good faith
was average because while Mt. Baker Roofing, Inc., had the knowledge of the
Washington Industrial Safety and Health standards, it did not apply that
knowledge to the worksite Mr. Koskela inspected on December 10, 2004. Further, the Department was correct in determining
that Mt. Baker Roofing, Inc.'s history was average because a repeat multiplier
was used to increase the penalty.
11. Mt.
Baker Roofing on December 10, 2004, had between 26 and 100 employees.
12. Mt.
Baker Roofing, Inc., was cited for a substantially similar hazard as Item No.
1-1a of Citation and Notice No. 308440205, in Corrective Notice of
Redetermination No. 304832322, issued on March 8, 2002, which was not appealed.
13. Mt.
Baker Roofing, Inc., was cited for a substantially similar hazard as Item No.
1-1a of Citation and Notice No. 308440205, in Citation and Notice No.
303103832, which was appealed to the Board, and assigned Docket No. 00 W0668. The violation was affirmed by a Proposed
Decision and the Order and then by an Order Denying Petition for Review dated
March 20, 2002.
14. The
Department, on September 25, 2002, in Citation and Notice No. 305686024, cited
Mt. Baker Roofing, Inc., for a violation of WAC 296-155-204510. The Department on December 9, 2002, issued
Citation and Notice No. 305922007 citing Mt. Baker Roofing, Inc., for a
violation of, among other things, WAC 296-155-24510. Mt. Baker Roofing,
Inc., appealed both Citation and Notices to the Board. The Board, in an order dated December 1,
2003, remanded the Citation and Notices to the Department for further
consideration. [9]
15. Mt.
Baker Roofing, Inc., was cited for a violation of WAC 296-155-24510, in
Corrective Notice of Redetermination No. 304431018, dated August 6, 2001;
Corrective Notice of Redetermination No. 304297682, dated August 6, 2001;
Corrective Notice of Redetermination No. 304431471, dated August 6, 2001;
Corrective Notice of Redetermination No. 304431331, dated August 6, 2001; and
Citation and Notice No. 3044621121, dated October 25, 2001. The foregoing Corrective Notices of
Redetermination and the Citation and Notice were appealed to the Board. Mt. Baker Roofing, Inc., sent a letter or
letters to the Board, which were received on July 23, 2002, asking that the
appeals be dismissed. The appeals were
dismissed by separate Orders Dismissing Appeal, all issued on July 26, 2002.
16. The
repeat violations related to Item No. 1-1a of Citation and Notice No. 308440205 and identified as: (1) Formal Settlement Agreement 305922007 RS
Violation 1 Item 1, Group A, issued on December 1, 2003; (2) Formal Settlement Agreement
304621121 RS Violation 1 Item 1, issued on July 26, 2002; (3) Formal
Settlement Agreement 304297682 RS Violation 1 Item 1, Group A, issued on July
26, 2002; (4) Formal Settlement Agreement 304431471 RS Violation 1 Item 1,
Group A, issued on July 26, 2002; (5) Formal Settlement Agreement 304431331 RS
Violation 1 Item 1, Group A, issued on July 26, 2002; (6) Formal
Settlement Agreement 304431018 RS Violation 1 Item 1, Group A, issued on July
26, 2002; (7) Formal Settlement Agreement 305686024 RS Violation 1 Item 1,
Group A, issued on December 1, 2003, by the agreement of the parties; (8) Board
Decision and Order 303103832, S Violation 1 Item 1, issued on March 20, 2002;
and (9) Corrective Notice of Redetermination 304832322 RS Violation 1 Item 1,
issued on March 8, 2002.
17. Pleadings
submitted by the Department and Mt. Baker Roofing, Inc. in relation to Mt.
Baker Roofing, Inc.'s Motion for Partial Summary Judgment, and the Department's
Motion for Summary Judgment, along with the file and records, including the
pleadings in Docket No. 05 W0184, demonstrated that there is no
genuine issue of any material fact.
CONCLUSIONS OF LAW
1. The Board of Industrial
Insurance Appeals has jurisdiction over the parties to, and the subject matter
of, this appeal.
2. Both
the Department and Mt. Baker Roofing, Inc., are entitled to summary disposition
as a matter of law as contemplated by CR 56.
3. On
December 10, 2004, Mt. Baker Roofing, Inc., committed a repeat, serious
violation of WAC 296-155-24510, as alleged in Item No. 1-1a of [10] Citation and Notice No.
308440205. The violation was
appropriately assigned a based penalty of $2,700, for a serious violation.
4. Mt.
Baker Roofing, Inc., on December 10, 2004, committed a repeat, serious violation
of WAC 296-155-24505(1), as alleged in Item No. 1-1b of Citation and Notice No.
308440205. The violation was
appropriately grouped with Item 1-1a.
5. Pursuant
to RCW 49.17.180, WAC 296-800-35040, because there were nine repeat violations,
the base penalty must be multiplied by ten resulting in a penalty of
$27,000.
6. Citation
and Notice No. 308440205, is affirmed as modified.
It
is so ORDERED.
Dated this 13th day of December,
2006.
BOARD
OF INDUSTRIAL INSURANCE APPEALS
/s/________________________________________
THOMAS
E. EGAN Chairperson
/s/________________________________________
FRANK
E. FENNERTY, JR. Member
/s/________________________________________
CALHOUN
DICKINSON Member