APPEARANCES:

 

Employer, Cascade Utilities, Inc., by

Ehlke Law Office, per

Douglas B. M. Ehlke

 

Department of Labor and Industries, by

The Office of the Attorney General, per

Brian L. Dew, Assistant

 

            On October 22, 2004 , the employer, Cascade Utilities, Inc., filed an appeal with the Department of Labor and Industries, from Citation and Notice No. 307877639, which was issued by the Department on October 15, 2004 .  The Department forwarded the appeal to the Board of Industrial Insurance Appeals, where it was received on November 23, 2004 .  In this Citation and Notice, the Department cited the employer for a serious repeat violation of WAC 296-155-655(11)(a), with a penalty of $4,500 (Item 1-1), and a serious repeat violation of WAC 296-155-657(1)(a), with a penalty of $4,500 (Item 1-2).  The total penalty assessed was $9,000.  The Citation and Notice is VACATED. 

 

PROCEDURAL AND EVIDENTIARY MATTERS

 

             Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the employer and the Department to a Proposed Decision and Order issued on June 26, 2006 .  In the Proposed Decision and Order, the industrial appeals judge determined that the employer had violated WAC 296-155-657(1)(a) (Item 1-2), but not WAC 296-155-655(11)(a) (Item 1-1).  We have granted review because we conclude that the Department has failed to prove either violation.

             All contested issues are resolved in this order.  The Board has reviewed the procedural and evidentiary rulings.  Several matters warrant discussion before we reach the merits of this appeal.

             Exhibit No. 5: The industrial appeals judge erred in admitting Exhibit No. 5, Rick Goroski's inspection report, over the employer's hearsay objection.  We reject Exhibit No. 5 based on the reasoning set forth in In re The Erection Company, Dckt. No. 02 W0078 (May 3, 2004). [2]

Unpreventable employee misconduct defense:  The industrial appeals judge also erred in precluding the employer's attorney from asking Robert Bailie any questions about the employer's safety rules and Accident Prevention Plan (APP), because of the employer's inadvertent failure to attach a copy of its APP to its discovery responses.  That ruling prevented the employer from proving its affirmative defense of unpreventable employee misconduct under RCW 49.17.120(5).

            In its September 9, 2005 discovery responses, the employer indicated that the APP was attached.  See, Request for Production No. 1, at 9.  The employer agrees that the APP was not actually provided at that time.  On September 19, 2005 , the Department filed a Motion to Compel Discovery and Deem Admissions.  The Department made no mention of the APP.  At a hearing on that same date, the industrial appeals judge granted the employer's Motion to Amend Notice of Appeal to include the affirmative defense of unpreventable employee misconduct.  On September 22, 2005 , the Department's Motion to Compel was heard.  The industrial appeals judge ordered the employer to produce Derek McIntyre's statement, the names of three cases in which David Tullis had testified previously, and the amount of compensation being received by company employees.  As the employer points out in its Petition for Review, the Department did not ask that the employer be compelled to produce the APP, nor did the industrial appeals judge order the employer to do so.

The first hearing to present testimony was held on September 23, 2005 .  Mr. Bailie, the president of Cascade Utilities, Inc., testified on September 27, 2005 .  The employer's attorney attempted to ask him questions regarding the company's safety rules and the enforcement of those rules, as required to prove unpreventable employee misconduct.  RCW 49.17.120(5); In re The Erection Company (II), BIIA Dec., 88 W142 (1990).  The assistant attorney general objected, based on the employer's failure to provide copies of safety standards and disciplinary policies during discovery.  The Department mistakenly claimed that these items were covered by the Department's Motion to Compel.  9/27/05 Tr. at 177.  Based on that representation, the industrial appeals judge directed the employer's attorney as follows: "Okay, Mr. Ehlke.  I think what you need to do, if you want to follow this defense, is to only ask questions about which you provided appropriate responses to discovery requests."  9/27/05 Tr. at 181.  Throughout the remainder of Mr. Bailie's testimony, the industrial appeals judge consistently sustained the assistant attorney general's objections when the employer asked any questions that might involve enforcement of the company's safety rules. [3]

 

The employer correctly points out that the harsh sanction of excluding testimony is not warranted in the absence of a showing that there was an intentional or willful violation of a court order or some other unconscionable act.  Fred Hutchinson Cancer Research Center v. Holman, 107 Wn.2d 693, 706-707 (1987).  Because the industrial appeals judge had not ordered the employer to provide the APP, the employer did not violate a court order under CR 37.  There is also no evidence of unconscionable conduct on the employer's part.  In fact, the employer listed its Accident Prevention Plan in its September 9, 2005 discovery responses.  In addition, the assistant attorney general knew that the employer was raising the unpreventable employee misconduct defense and presumably understood that that would include the requisite proof under RCW 49.17.120(5) and The Erection Company (II).

In the past, when faced with the question of whether sanctions are appropriate for a discovery violation, we have required a balancing of interests.  In In re Waheed Al‑Maliki, BIIA Dec., 01 14923 (2003), we held that the least severe sanction should be chosen, so long as the purpose of discovery is not undermined.  A more proportionate response to the employer's apparently inadvertent failure to provide a copy of its APP on September 9, 2005 might have been to require the employer to provide the APP, allow the Department time to review it, and schedule additional hearing time, if necessary.  Perhaps some imposition of costs would have been warranted.  However, under CR 37, Fred Hutchinson, and Al-Maliki, preventing the employer from proving its affirmative defense was too harsh a sanction.

Ultimately, the error was harmless because we have determined that the Department failed to prove a necessary element of the alleged violation of WAC 296‑155-657(1)(a) and that Item 1-2 must be vacated for that reason.  However, had we concluded otherwise, a remand for further hearings would have resulted, with additional costs and delays in the resolution of this appeal.  For that reason, we felt the issue warranted some discussion, in order to provide guidance and to avoid similar problems in the future. 

             Transcript of September 26, 2005 hearing:  The final matter that requires our attention is the manner in which changes were made to the September 26, 2005 transcript of James Gunderson's testimony.  In Item 1-1, the employer was cited for failure to perform daily inspections of excavations and the surrounding areas as required by WAC 296‑155-655(11)(a).  In its Petition for Review, the Department contends that Mr. Gunderson admitted that he failed to inspect the fourth trench excavated on August 9, 2004 .  The Department relies solely on the following language:  [4]

Q. (by Employer's Attorney)   Okay.  Now, when you -- what else -- you talked about what you looked at for -- when you do these inspections.  Did you do that specifically for the trenching question on August 9th, 2004 , inspect for all those things you just described, before any work was done in the trench that we're talking about in this case?

 

A.   Well, I -- not specifically four.  Had watched all that, but I -- at one and two [CELL PHONE BEGINS TO RING] and three, I'd been there for the starting of excavation of those.  I'm sorry; let me shut this thing off.

 

9/26/05 Tr. at 129-130 (Emphasis added); Petition for Review, at 2.

In the original certified transcript, the "four." was a "for--".  The industrial appeals judge approved the change from "for--" to "four." in the Proposed Decision and Order.  Proposed Decision and Order, at 1. [1]   However, that change had already been made in the electronic version of the transcript, based on the assistant attorney general's communication with the court reporter.  In its Petition for Review, the employer renews its challenge as to how that change occurred and to the industrial appeals judge's acquiescence. 

            Some background is necessary to understand the significance of this issue.  There is a dispute about how many trenches were actually excavated on August 9, 2004 , prior to the Department's inspection, three or four.  At the September 26, 2005 hearing, Mr. Gunderson testified that there were four.  Two days later, he signed a Declaration saying that he had misspoken, and that he should have said three, not four.  On September 29, 2005, the employer filed a Motion to Reconcile Trial Testimony to Previous Sworn Testimony and Mr. Gunderson's September 28, 2005 Declaration.  At an October 10, 2005 hearing, the industrial appeals judge denied that motion because it was untimely and because:

I can't allow corrections of every little detail to crop up -- that crops up during a trial to be cured sometime after the fact. 

I am sure there are -- there were more than one example of some kind of a discrepancy of this or that and it is -- I agree with Mr. Dew in the sense that he relied on what Mr. Gunderson was testifying to and if it wasn't brought to Mr. Gunderson's attention or if he didn't realize it until after the fact and didn't try to correct it immediately, then that is just the way it goes.

 

10/10/05 Tr. at 5-6.

The employer has renewed its Motion to Reconcile in its Petition for Review. [5]

The industrial appeals judge correctly declined to make changes in the September 26, 2005 transcript of Mr. Gunderson's testimony when requested to do so by the employer.  It would be inappropriate to permit witnesses to second guess themselves after the fact and change their testimony unilaterally.  However, that ruling was not the end of the matter. 

The certified transcript of the September 26, 2005 hearing was filed with the Board on October 11, 2005 .  On October 24, 2005 , the employer asked the industrial appeals judge to set a post-hearing briefing schedule.  On October 27, 2005 , the industrial appeals judge gave the Department until November 18, 2005 , and the employer until December 1, 2005 , to file briefs.  On November 13, 2005 , the Department filed its brief and on December 2, 2005 , the employer's brief was received.

Then, on December 5, 2005 , the assistant attorney general sent a letter to the industrial appeals judge saying: "In reviewing the transcript of James Gunderson I discovered some inconsistencies with my notes and recollection of portions of his testimony.  I would like to review the audio tape from the hearing to determine the accuracy of the transcript."  Apparently, the attorneys then had a conversation with the industrial appeals judge's judicial assistant on December 8, 2005 , during which she requested the assistant attorney general to contact the court reporting company directly.  That telephone call was briefly alluded to during a subsequent hearing on February 27, 2006 .  2/27/06 Tr. at 3-4, 7. 

At the February 27, 2006 hearing, the assistant attorney general indicated that he had done as requested by the judicial assistant, and contacted the court reporting company.  He was told that the court reporter would listen to the audiotape of the September 26, 2005 hearing and decide whether a correction was warranted.  He said:  "I had no control over that.  It was an independent decision by the court reporter."  2/27/06 Tr. at 7.  When he had not heard back regarding what decision had been made, he inquired and discovered that the transcript had already been received.  At that point, he contacted the employer's attorney.  2/27/06 Tr. at 7.

The Board file shows that one day after the December 8, 2005 phone call, the court reporter sent an internal e-mail to a staff member within the court reporting company.  That e-mail was also sent to the Board and reads in part:

This is a transcript which was turned in a long time ago, but now a question has arisen with it.  Apparently at one point one of the witnesses said the word "four," but because of the context it wasn't clear to me that that was what he meant, and I wrote "for," and then a double dash, as he seemed to suddenly change his tone  and [6]
his thought.  So I have now amended the transcript (it's on line 5 of page 130) and am re-submitting it with the spelling "four," followed by a period.  It was the AAG, Brian Dew, who pointed this out, and he has requested that an amended transcript be sent to the judge.

 

I am not attaching a transmittal form, because I'm not sure how it would need to be filled out.  If you need me to fill one out or do anything else, just let me know what needs to be done.

 

On January 26, 2006 , a staff member in the employer's attorney's office e-mailed the assistant attorney general, saying:  "I have read page 130 of Jim Gunderson's transcript, and all the 'for' references (on lines 1, 2, and 5) are correct.  Where do you see a 'for' that should be 'four'?"  The assistant attorney general responded: "Line 5."  The employer disagreed with that assessment in a January 27, 2006 e-mail to Board staff, saying:

Here is the AG's response as to which line on page 130 of Jim Gunderson's testimony on September 26, 2005 he believes contained a typographical error.  The "for" spelling in line 5 is correct as "for" especially when you read the question before Mr. Gunderson's response.  It is clear that Mr. Gunderson was restating in his response the same words used in the question.  Therefore, if there was a change in the transcript based on the AG's mistaken belief that there was a typographical error, we are not in agreement of [sic] that change.

 

On January 30, 2006 , the Department filed a Post-Hearing Reply Brief, in which it argued that: "Mr. Gunderson's admission that he failed to inspect the fourth trench is decisive for this citation item," i.e., Item 1-1.  Reply Brief, at 2.  In support of this argument, the Assistant Attorney General pointed out that: "The corrected transcript substitutes "four" for "for.'"  Reply Brief, at 1 (footnote 1).  In response, the employer immediately filed a Motion to Strike Department's Reply Brief on January 31, 2006 .  The employer strongly protested the way in which the transcript change had been effected.  While there are no Board rules directly on point, the employer cited RCW 2.32.250, as well as a number of rules governing transcript changes in other contexts‑‑RAP 9.5(c), WAC 10-08-219, and ELC 11.4(c) and (d).  On February 23, 2006 , the employer also filed another Declaration from Mr. Gunderson, this one explaining that he meant "for" not "four."

The industrial appeals judge set the employer's motion for hearing on February 27, 2006 .  After oral argument, he reserved ruling.  9/26/05 Tr. at 130.  On June 26, 2006, the industrial [7]
appeals judge issued his Proposed Decision and Order, in which he denied the employer's Motion to Strike and approved the transcript change, without discussion.  Proposed Decision and Order, at 1. 

If the assistant attorney general believed there was an error in the transcript, his remedy was to file a motion seeking a correction in a timely fashion.  As the employer points out, the industrial appeals judge had denied the employer's earlier motion to correct Mr. Gunderson's testimony, in part because he considered it untimely.  That motion was filed three days after the hearing.  In contrast, the assistant attorney general did not alert anyone to his concerns until December 5, 2005 , more than two months after the hearing.  Once he raised those concerns, the proper procedure would have been to place the burden on the Department, not the employer, to explain why changes were warranted.  Instead, the Department was apparently directed to converse with the court reporter.  As a result of that conversation, the transcript was changed without any opportunity for the employer to be heard on the issue.  The Department then filed a brief making a legal argument based on the now favorable testimony.  The industrial appeals judge then shifted the burden to the employer to file an objection to the change and to explain why it should not have been made, rather than requiring the Department to show why it should be made.

The integrity of the record before the Board is critical.  The assistant attorney general should not have been directed to contact the court reporter on his own.  Instead, he should have been directed to file a motion.  The industrial appeals judge should then have held a hearing on that motion, and placed the burden on the movant to explain why the transcript should be changed. 

Considering the record in that light, we conclude that the transcript should not be changed.  This is not a case of a clear typographical error or even of a misheard word, since "for" and "four" sound exactly alike.  Mr. Gunderson himself says that he meant "for" not "four."  That was the court reporter's impression as well when she certified the original transcript.  From the context, we think she was correct in her initial impression.  Furthermore, on such a critical matter, the Department did not raise its concerns in a timely fashion.  For all of these reasons, we deny the Department's request to change the transcript.  The original certified transcript therefore remains the official record. 

             We find that no other prejudicial error was committed and all other rulings are affirmed.  [8]

DECISION

The employer was cited for failure to perform daily inspections of excavations and the surrounding areas (Item 1-1, WAC 296‑155-655(11)(a)), and failure to protect an employee in a trench deeper than four feet (Item 1-2, WAC 296‑155-657(1)(a)).  In the Proposed Decision and Order, the industrial appeals judge thoroughly reviewed the evidence.  We will only touch on those aspects which are relevant to our decision.

Cascade Utilities, Inc., (Cascade) began working on a residential development at Sunny Hill Farm in June 2003, digging trenches and installing pipes, including sewer lines from home sites to the sewer main.  The company routinely used a 16-foot long trench box to protect employees installing pipe in the trenches.  Rick Goroski, an inspector for the City of Redmond , had performed numerous random inspections at the worksite, without finding any violations.  On August 9, 2004 , James Gunderson, the foreman and designated "competent person" under WAC 296-155-650(2)(f), arrived at the site at 6:00 a.m.   He testified that he visually inspected the area where the employer would be excavating that day and did not see any problems.  He determined that the dirt was the same as it had been throughout the project.  He also testified that he performed daily visual inspections of all trenches excavated during the project.  9/26/05 Tr. at 120-121; 82.

The work crew, consisting of Derrick McIntyre, Stan Zylstra, Mark Beier, and Tony Beier, all arrived by 7:05 a.m. and began work.  They excavated four trenches, using the trench box for protection as they installed pipe.  Once the pipe was laid, they removed the trench box and back‑filled the excavations.

Mr. Goroski arrived at the site at 11:00 a.m.   When he was within about 10 feet of the excavation pictured in the various photographic exhibits, he saw someone in the trench.  He assumed that person was a Cascade employee.  Although there is no direct evidence, everyone appears to agree that the person was Mr. Zylstra, who was not called as a witness.  None of his fellow employees testified either.  It is not known why Mr. Zylstra was in the trench.

Mr. Goroski directed Mr. Zylstra to get out of the trench, which he did.  There is no description of how he did this, whether he walked out or used a ladder or pulled himself out or required some assistance.  That type of information might have provided some evidence as to the depth of the trench where Mr. Zylstra was located.  Mr. Goroski posted a stop work order and called the Department.  Mike Rochlin, a compliance safety and health officer for the Department, arrived some time before 12:30 p.m.   Mr. Rochlin took no measurements of the trench.  His fellow compliance officer, Gary Sadowski, apparently did so, but he was not called to testify. [9]

In looking at the photographic exhibits, Mr. Goroski could not say where Mr. Zylstra was located in the trench when he saw him.  He measured a 7-foot depth in one part of the trench, but said the trench was graded and he did not measure the shallowest part.  According to Mr. Gunderson, the trenches were not the usual relatively flat 2 percent grade.  They had to be dug at a steeper grade, due to site-specific engineering considerations.  9/26/05 Tr. at 153.  The length of the trenches also varied.  They were at least as long as the trench box, which was 16 feet, and could be up to 30 feet.  The deepest end of each trench was toward the sewer main and the shallowest end was toward the future home site.  Like Mr. Goroski, Mr. Gunderson did not know what the trench depth was at its shallowest point, nor did Mr. Gunderson testify to the trench depth elsewhere.

Based on this evidence, the industrial appeals judge concluded that the Department had failed to prove a violation of WAC 296-155-655(11)(a) with respect to daily inspections (Item 1-1).  In its Petition for Review, the Department challenges that determination, contending that Mr. Gunderson admitted he failed to inspect the fourth trench on August 9, 2004 .  This argument is based solely on the modification of the transcript, which we have discussed above and disallowed.  In the absence of that altered testimony, the Department's argument has no factual basis and is therefore without merit.  We agree with the industrial appeals judge's determination that Item 1-1 should be vacated.

Item 1-2 must also be vacated.  WAC 296‑155-657(1)(a) provides:

Protection of employees in excavations.

 

(a) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with subsections (2) or (3) of this section except when:

 

(i) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 4 feet (1.22m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.

The industrial appeals judge correctly concluded that the stable rock exception under WAC 296‑155-657(1)(a)(i) was inapplicable.  The remaining question is whether WAC 296‑155-657(1)(a)(ii) applies.  As we have already concluded, Mr. Gunderson performed the requisite examination of the ground for indications of a potential cave‑in.  The Department was therefore required to prove that a Cascade employee was in an excavation at a depth of four or more feet.  Otherwise, no protective system was required with respect to that employee.  As the employer [10] points out, the Department failed to provide the necessary trench measurements in support of this portion of the citation.

The industrial appeals judge concluded that: "There was some question about the depth of the trench, but from Mr. Goroski's impressions and the photographs offered into evidence, there seems to be little question the depth of the trench Mr. Zylstra was in when observed by Mr. Goroski was more than 4 feet deep."  Proposed Decision and Order, at 9.  The industrial appeals judge apparently inferred that, regardless of where Mr. Zylstra was actually located in the trench, it had to be at least four feet deep.  However, in the absence of any evidence regarding what the shallowest depth measurement was, there is no basis for that inference.

In a case arising under the Washington Industrial Safety and Health Act, the Department has the burden of proof.  WAC 263-12-115(2)(b); In re Olympia Glass Co., BIIA Dec., 95 W445 (1996).  During the hearing on the employer's motion to dismiss for failure to present a prima facie case, the assistant attorney general argued that the Department was not required to prove the depth of the trench.  9/26/05 Tr. at 95.  However, when, as here, a competent person has determined that there is no indication of a potential cave-in, WAC 296-155-657(1)(a) only requires protective devices when an employee is exposed to the hazard of a trench that is at least four feet deep.  Otherwise, the Department would be free to cite an employer no matter how shallow the trench was.

The evidence regarding the depth of the trench at the point where Mr. Zylstra was located when Mr. Goroski saw him is sparse, at best.  Mr. Goroski was the only witness to the actual event and he had no recollection of what portion of the trench Mr. Zylstra was in when he saw him.  The trench itself was graded and no witness provided any depth measurement for the shallowest end.  Thus, Mr. Zylstra could have been in a portion of the trench that was less than four feet deep.  There is no way of knowing, based on this record.  We, therefore, agree with the employer; the Department has failed to prove a necessary element of the alleged violation of WAC 296‑155-657(1)(a).  Item 1-2 must therefore be vacated.

 

FINDINGS OF FACT

 

1.         On August 9, 2004 , a compliance safety and health officer from the Department of Labor and Industries conducted an inspection of Cascade Utilities, Inc., at the Sunny Hill Farm development near NE 117th and 167th in Redmond , Washington .  On October 15, 2004, the Department issued Citation and Notice No. 307877639, in which it alleged the following violations: Item No. 1-1, a repeat serious violation of WAC 296‑155-655(11)(a), with a penalty of $4,500; and Item No. 1-2, a repeat serious violation of WAC 296-155-657(1)(a), with a penalty of $4,500.  The total penalty assessed was $9,000.  [11]

 

            On October 22, 2004 , Cascade Utilities, Inc., filed its appeal from Citation and Notice No. 307877639, with the Safety Division of the Department of Labor and Industries.  The Department elected not to reassume jurisdiction and transmitted the appeal to the Board of Industrial Insurance Appeals, where it was received on November 23, 2004 . 

 

            On November 24, 2004 , the Board issued a Notice of Filing Appeal and assigned the appeal Docket No. 04 W1392.

 

2.         During the morning of August 9, 2004 , Cascade Utilities, Inc., excavated four trenches for sewer pipes on part of the residential development known as Sunny Hill Farm.  The trenches were varied in length and were not the usual relatively flat 2 percent grade.  A steeper grade was required, due to site-specific engineering considerations.  The extent of the steeper grade is unknown.

 

3.         The trenches excavated by the employer on August 9, 2004 , were situated within Type B soil in that it was cohesive soil as demonstrated by high clay content.  This type of soil does not crumble and can be excavated with vertical sideslopes.  This type of soil is hard to break up when dry and exhibits cohesion when submerged.

 

4.         On August 9, 2004 , the employer had an employee, James Gunderson, on site at the Sunny Hill Farm development.  Mr. Gunderson had the qualifications, training, and knowledge sufficient to be considered a competent person under WAC 296-155-650(2)(f). 

 

5.         On August 9, 2004 , at the Sunny Hill Farm development, Mr. Gunderson performed a visual inspection and assessment of the soil that was about to be and was excavated by the employer's crew.  As part of his inspection, Mr. Gunderson looked for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres or other hazardous conditions.

 

6.         On the morning of August 9, 2004 , at the Sunny Hill Farm development, employees of Cascade Utilities, Inc., excavated four trenches, using a trench box for protection as they installed sewer pipe.  Once the pipe was laid, they removed the trench box and back-filled the first three excavations.  Some time after the trench box had been removed from the fourth trench, an employee of Cascade Utilities, Inc., was briefly observed in the trench.  It is not known what portion of the trench he was seen in.  At one point, the trench was seven feet deep.  It is not known what the shallowest depth of the graded trench was.  The trench was at least 16 feet long.  When directed to do so, the employee exited the trench.  It is not known how he did so, whether he walked out or used a ladder or pulled himself out or required some assistance. [12]

 

 

CONCLUSIONS OF LAW

 

1.         The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.

 

2.         On August 9, 2004 , Cascade Utilities, Inc., did not violate the provisions of WAC 296-155-655(11)(a) as alleged under Item 1-1 of Citation and Notice No. 307877639.

 

3.         On August 9, 2004 , Cascade Utilities, Inc., did not violate the provisions of WAC 296-155-657(1)(a) as alleged under Item 1-2 of Citation and Notice No. 307877639.

 

4.         Citation and Notice No. 307877639, issued by the Department of Labor and Industries on October 15, 2004 , is vacated.

 

            It is so ORDERED.

 

            Dated this 6th day of November, 2006.

.