SAFETY AND HEALTH
Amendment of citation
The Board will not allow amendment of a Citation and Notice where defending against the amended citation could involve different witnesses and exhibits than defending against the originally cited rule. ....ABB Power Generation, Inc., 93 W469 (1994)
The corrective notice of redetermination may be amended to conform to the evidence absent a showing of prejudice to the employer. ....Jeld-Wen of Everett, 88 W144 (1990)
Appeals
RCW 49.17 does not permit employee to appeal to the Board a Department decision not to conduct an inspection of a work site or issue a citation for alleged violations of Industrial Safety and Health Act. ....Jay Holloway, 91 3679 (1991)
Authority to issue nunc pro tunc order
The Department cited an employer for four safety violations and issued a Corrective Notice of Redetermination assessing a $6,000 penalty arising out of an incident where a worker was electrocuted. In a separate investigation, the Department apparently determined it had been too lenient on the employer. As a result, more than 60 days after issuance of the unappealed Corrective Notice of Redetermination, the Department issued a nunc pro tunc order vacating the Corrective Notice of Redetermination. The Board concluded there was no statutory authority to issue a nunc pro tunc order. ....American Neon Signs, 94 W346 (1995) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 92-2-04624-5.]
Burden of proof
In an appeal from a Corrective Notice of Redetermination alleging a failure to abate, whether the abatement date was unreasonable is an affirmative defense. The burden of proof is on the employer to establish that the abatement date was unreasonable. ….U.S. Attachments, Inc., 09 W1101 (2010)
To establish a violation of WAC 296-155-100(1)(a), the Department has the burden of proving a contractor's failure to establish, supervise, and enforce, in a matter that is effective in practice, a safe and healthful working environment. J. E. Dunn v. Department of Labor & Indus., 139 Wn. App. 35 (2007). The Department satisfies its burden by presenting evidence of violations of specific safety standards at the worksite. ....Mediterranean Pacific Corp., 06 W0162 (2007)
In appeals filed under WISHA, the Department of Labor and Industries has the burden of proving the existence of a violation and the appropriateness of the resulting penalty assessment. ….Olympia Glass Co., 95 W445 (1996) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 96-2-04313-1.]
Burden of proof - failure to abate
The Department must prove three elements to establish a prima facie case of failure to abate. First, the original citation must have become a final order; second, the condition on reinspection must be identical; and third, the condition on reinspection must be in violation of WISHA. ….Olympia Glass Co., 95 W445 (1996) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 96-2-04313-1.]
Corporate officers
To determine whether "corporate officers" exposed to a hazard are exempted from coverage of safety and health rules, the only relevant factor is whether the corporate officers actually exercised any control over the running of the corporation. ....Framers, Inc., 01 W0465 (2003)
"Employee misconduct" defense
In order to establish the affirmative defense of employee misconduct, an employer must show that is has established work rules designed to prevent the violation, has adequately communicated those rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered. ....The Erection Company (II), 88 W142 (1990)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 90-2-23987-0]; Jeld-Wen of Everett, 88 W144 (1990)
"Unpreventable employee misconduct" defense is only relevant when an unsafe action or practice of an employee results in a violation. It is not a defense to a machine guarding violation. ....Jeld-Wen of Everett, 88 W144 (1990)
Employer (RCW 49.17.020(3))
Employer (RCW 49.17.020(3)) In leased employment situations, whether the lessor or the lessee should be cited depends on the economic realities of the workplace. Both employers cannot be cited unless they each have substantial control over the workers and the work environment. The employer, for purposes of a WISHA citation, is the employer with control over the work site. ….Skills Resource Training Center, 95 W253 (1997)
The failure of the employer to contract with a licensed contractor does not establish responsibility for safety violations, the test for responsibility under the statue is whether personal labor is the essence of the contract. Citing White v. Department of Labor & Indus., 48 Wn.2d 470 (1956). ....Kenneth and Viola Whitmire, 95 W338 (1996)
Enforcement of safety standards in federal enclave
Art. 1, Sec. 8, cl. 17 of the Constitution of the United States does not prevent the Department from enforcing WISHA upon the operations of private contractors located within a federal enclave, regardless of the method of acquisition of the enclave by the United States, unless the state legislature ceded exclusive jurisdiction to the United States, and the United States has continually used the property for a purpose enumerated by Art. 1, Sec. 8, cl.17 of the federal constitution. ….General Security Services Corporation, 96 W376 (1998)[Editors Note: The Board's decision was appealed to superior court under King County Cause No. 99-2-00176-1SEA, Department; Pierce County Cause No. 99-2-04341-9, Employer.]
Operations at the federal courthouse in Tacoma are subject to WISHA since the land was acquired in 1989 and the governing statute at that time ceded concurrent (rather than exclusive) jurisdiction to the federal government. ….General Security Services Corporation, 96 W376 (1998) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 99-2-00176-1SEA, Department; Pierce County Cause No. 99-2-04341-9, Employer.]
Feasibility defense
Federal guidelinesIf an employer wishes to argue that compliance with a safety standard is infeasible, it has the burden of proof of this affirmative defense. An employer must prove that (1) the means of compliance prescribed by the applicable standard would have been infeasible under the circumstances in that (a) its implementation would have been technologically or economically infeasible, or (b) necessary work operations would have been technologically or economically infeasible after its implementation, and (2) either (a) an alternative method of protection was used, or (b) there was no feasible alternative means of protection. ….Longview Fibre Company, 98 W0524 (2000)
* The Department rules that address flagging activities can incorporate standards from the federal Manual on Uniform Traffic Control Devices (MUTCD). Stricter Department standards, however, take precedence over the MUTCD to ensure the safety of workers. ....Hawkeye Construction, Inc., 06 W1072 (2007) [Editor's Note: The Board's decision was appealed to superior court under Chelan County Cause No.008-2-00069-3.]
General contractor liability for safe environment
*To establish a violation of WAC 296-155-100(1)(a), the Department has the burden of proving a contractor's failure to establish, supervise, and enforce, in a matter that is effective in practice, a safe and healthful working environment. J. E. Dunn v. Department of Labor & Indus., 139 Wn. App. 35 (2007). The Department satisfies its burden by presenting evidence of violations of specific safety standards at the worksite. ....Mediterranean Pacific Corp., 06 W0162 (2007)
General contractor was cited for failing to establish, supervise and enforce, in a manner that was effective in practice, a safe and healthful work environment as a result of violations by its subcontractor. Proof of a subcontractor's cited safety violation does not, in and of itself, constitute proof that a general contractor's primary safety obligation was not satisfied. A determination as to whether a general contractor has established, supervised and enforced a safe working environment in a manner that is effective in practice involves an analysis similar to that used in evaluating "effective in practice" for the affirmative defense of unpreventable employee misconduct. ….Exxel Pacific, Inc., 96 W182 (1998) [dissent]
General contractor liability - multiple employer worksite
The general contractor on a multiple employer construction site is responsible for its subcontractor's WISHA violation when (1) the violation exposes not only the subcontractor's employees, but also other workers on the site to a safety hazard, (2) the general contractor could reasonably have been expected to prevent or abate the subcontractor's violation by reason of its supervisory capacity over the entire site, and (3) the subcontractor's WISHA violation is obvious. ....R C Construction, 87 W039 (1989) [See also Stute v. P.B.M.C., Inc., 114 Wn.2d 454 (1990)]
General duty standards (WAC 296-24-073)
An employer violated general safe workplace standards where workers were exposed to traffic hazards in reversible lane operation which required workers to maneuver cones from rear bumper of moving truck. To establish a violation of general duty standards, the Department must establish three elements: (1) employer failed to provide a workplace free from hazard; (2) the hazard is recognized; and (3) the hazard is likely to cause death or serious physical injury. ....City of Seattle, 89 W136 (1991)
Grouped Violations
When the department has grouped multiple items in a violation, the vacation of one item does not necessarily result in elimination of the penalty. If the remaining item supports a penalty, the penalty will be assessed. ….Tom Whitney Construction, 01 W0262 (2002)
Grouping of violations
The Department may group two or more non-serious (general) violations to form a single serious violation (with sub-parts) and assess a penalty so long as the existence of the combined violation created a substantial probability that death or serious physical harm could result therefrom. ….General Security Services Corporation, 96 W376 (1998) [Editors Note: The Board's decision was appealed to superior court under King County Cause No. 99-2-00176-1SEA, Department; Pierce County Cause No. 99-2-04341-9, Employer.]
Immediate restraint
An order and notice of immediate restraint is void when it is issued by Department at the same time as it declined to renew the contractor's asbestos removal certificate, proscribes prospective action rather than present action, is not the type of order provided for in RCW 49.17.130(1), and exceeds the Department's authority. In light of RCW 49.17.140, which results in an automatic stay upon an appeal to the Board, the Department lacks authority to take any action affecting the asbestos contractor's certificate pending the contractor's appeal of the failure to renew the certificate. The effect of the order of immediate restraint is circumvention of the employer's appeal from certificate nonrenewal; in order to restrain future activities, the Department must seek injunctive relief at the superior court. ....Air Quality Services, Inc., 92 W370-C (1993) [Editors Note: Thurston County Cause No. 93-2-00358-4]
Industry-specific standards
A telecommunications employer was cited for fall violations under standards for operations involving construction work. It was not necessary to amend to a fall protection standard specific to the telecommunications industry because the work being performed when the violation occurred met the broad and inclusive definition for construction work found in WAC 296-115-012. ….Evergreen Utility Contractors, Inc., 98 W0016 (1999) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 00-2-00002-9.]
Leased employees
In leased employment situations, whether the lessor or the lessee should be cited depends on the economic realities of the workplace. Both employers cannot be cited unless they each have substantial control over the workers and the work environment. The employer, for purposes of a WISHA citation, is the employer with control over the work site. ….Skills Resource Training Center, 95 W253 (1997)
Multiple citations
A citation for failing to provide adequate shower facilities at an asbestos removal project must be vacated where the employer is also cited for failure to require workers to shower before entering uncontaminated area since the inadequate or absent shower facility necessarily resulted in workers' failure to shower. The issues are whether: the two violations allegedly committed by the employer arose out of the same incident; the violations address the same hazard; and the violation of the first standard logically incorporates a violation of the second standard. ....Walkenhauer & Associates, 91 W088 (1993) [dissent]
Order on agreement of parties
Where the parties seek an order on agreement of parties, only the Board has final authority to enter such an order or decline to do so and it will decline to enter an order where the parties' agreement is not supported by the facts and the law. In a WISHA appeal, a misstatement of the controlling law contained in the proposed agreement effectively negates the noteworthy purposes of the written agreement and the Board will decline to enter the order on agreement of parties. ....Riedel International, Inc., 93 W006 (1993)
The Board has final authority to enter an order on agreement of parties or decline to do so and an interlocutory appeal will not rise from the industrial appeals judge's statement advising the parties of the Board's willingness to allow particular language in the order. Where the written stipulation included a statement that the employer specifically denied that it violated WISHA, the Board will decline to enter the order on the basis the parties' agreement is not supported by the facts and the law. ....Seattle Fire Department, 92 W241 (1993)
In an employer's appeal from a WISHA citation, the Board will decline to enter an order on agreement of parties if the employees of the employer object to the entry of the order and the objection is made in good faith and not for an improper purpose. ....Ledcor Industries, 91 W058 (1993)
Penalties
The authority to assess penalties under WISHA lies exclusively with the Department of Labor and Industries. The Board lacks authority to increase the penalty on its own motion. ….Bergen Brunswig Drug Co. dba Amerisource Bergen Corp., 08 W1080 (2010)
The Board will review the appropriateness of penalty assessments based on due consideration of the statutory factors contained in RCW 49.17.180(7) and will reject a penalty based on a Department policy that ignores those factors. ....Olympia Glass Co., 95 W445 (1996)[Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 96-2-04313-1.]
When calculating penalties in the case of a county or other local government, the number of personnel within a specific department headed by an elected official are the number of employees in that department, not the number employed by the larger government entity. Citing Osborne v. Grant County, 130 Wn.2d 615 (1996); RCW 36.16.070. ….Clark County Public Works, 96 W322 (1998)
Although the Department may assess a penalty up to ten times the base penalty, it should not do so in every instance. Under the circumstances of this matter, it was appropriate to calculate the penalty for a repeat serious violation by multiplying the base penalty by the number of times the violation had been repeated and to double that amount in an instance of a willful violation. ....Cam Construction, 90 W060 (1992)
The Department's penalty worksheet is appropriate for calculating penalties, and a serious violation requires some monetary penalty which may be reduced by the employer's attempts to avoid inherent hazards. ....City of Seattle, 89 W136 (1991)
Process Safety Management
The employer established that its system of training is effective in practice because it developed a comprehensive training program for employees involved in operating a process and performing maintenance. Based on such a showing, the employer is not required to develop or implement an operation manual for training purposes and has not violated regulations pertaining to process safety management. ....Tesoro West Coast Co., 01 W0964 (2004)
Reassumption of jurisdiction by Department
The Department must complete its redetermination within 30 days from when the appeal is filed with the Department from the Citation and Notice. Any redetermination order issued after the 30-day period is invalid and the appeal proceeds to the Board of Industrial Insurance Appeals as a direct appeal from the Citation and Notice. Citing Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513 (1993)]….Walkenhauer & Associates, 91 W088 (1993) [dissent] [Editor's Note: The Board's decision was appealed to superior court in Skagit County, Cause No. 93-200135-3]
Where an employer appeals, in a timely manner, a citation and notice and the Department reassumes jurisdiction pursuant to RCW 49.17.140, the Department's failure to issue a corrective notice of redetermination within 30 working days from the date it reassumed jurisdiction, the Board must consider the appeal as having been taken from the citation and notice, not the corrective notice of redetermination. Citing The Erection Company v. Department of Labor and Industries, 65 Wn.App. 461 (1992) [which reversed In re The Erection Company (I), BIIA Dec., 88 W134 (1990)]. ....Renton Concrete Recyclers, 91 W085 (1992) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 94-212509-5.]
RCW 49.17.140 requires the Department to reassume jurisdiction, complete its informal conference process and issue a corrective notice of redetermination within 30 working days. The Department cannot extend the time for acting by issuing successive reassume orders. However, the failure of the Department to complete the process within the 30-day limit does not deprive the Department of jurisdiction to issue a subsequent corrective notice of redetermination absent a demand by the employer to transmit the original appeal to the Board. ....The Erection Company (I), 88 W134 (1990) Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 90-2-06343-7]
Repeat violations
"Final orders" as contemplated by safety and health regulations include Board orders dismissing appeals as well as Board orders remanding to the Department. These are properly included as final orders in the determination of the number of repeat violations. ....Mt. Baker Roofing, Inc., 05 W0549 (2006) [Editor's Note: The Board's decision was appealed to superior court under Whatcom County Cause No. 07-2-00012-3.]
A repeat violation occurs when the employer has been formerly cited for the same type of hazard; the Department is not required to establish that the employer had been previously cited for the same behavior. ....Cobra Roofing Services, Inc., 00 W0760 (2002)[Editor's Note: The Board's decision was appealed to superior court under Asotin County Cause No. 02-2-00051-2]
Safe workplace rule
With respect to the general safe workplace citation, to establish a violation, the Department must prove the employer failed to provide a workplace free of hazard, which was recognized, and likely to cause death or serious injury. Since the employer's operation involved equipment which was inherently dangerous, the Board considered a fourth criterion, indicating the Department must specify the particular steps an employer should have taken to avoid a "safe place" citation and demonstrate their feasibility. Citing In re City of Seattle, BIIA Dec., 89 W 136 (1991). ....ABB Power Generation, Inc., 93 W469 (1994)
Scope of review - SCOPE OF REVIEW Safety and Health
"Serious" violation
In determining whether a serious violation has occurred, the focus need not be on only a condition in the workplace, rather, focus may be on whether there is a substantial probability that harm could result from a practice, method or process in use in the workplace. …William Dickson Company, 99 W0381 (2001) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 02-2-00501-2SEA(Employer), 02-2-03240-1SEA(Department).]
In order for a violation to be classified as "serious" there must be a showing that the employer had knowledge of the hazardous conduct or condition and that there was "a substantial probability that death or physical harm could result" from the violation. RCW 49.17.180(6). ....The Erection Company (II), 88 W142 (1990)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 90-2-23987-0.]
Timeliness of citation RCW 49.17.120(4)
A second inspection of an employer commenced after the opening conference in the first inspection constitutes a separate inspection, not a continuation of the first, so that the time for issuing the citation and notice for the second inspection began on the date of the second inspection and not the first. RCW 49.17.120. ….Aerojet, 10 W1285 (2012)
"Willful" violation
Because an employer had been cited for trenching violations while working in certain soil conditions, and the employer was fully aware of the safety requirements in those soil conditions, its decision not to comply with trenching requirements constituted a "willful" violation since the employer substituted its judgment for the requirement of the safety code and demonstrated either the intentional disregard of or plain indifference to the requirements of the statute. ....Cam Construction, 90 W060 (1992)
In order to establish that a WISHA violation is "willful" the Department must demonstrate that it involved voluntary action, done either with an intentional disregard of or plain indifference to the requirements of the statute. ....The Erection Company (II), 88 W142 (1990) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 90-2-23987-0.]