Potelco, Inc. v. State

361 P.3d 767

POTELCO, INC, Appellant,

v.State of Washington DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 46256–7–II.

Court of Appeals of Washington, Division 2.

Sept. 22, 2015.

Publication Ordered Nov. 17, 2015.

Skylar Anne Sherwood, Josias E. Flynn, Riddell Williams PS, Seattle, WA, for Appellant.

Anastasia R. Sandstrom, Attorney General's Office, Seattle, WA, James P. Mills, Office of the Attorney General, Tacoma, WA, for Respondent.

Opinion

SUTTON, J.

¶ 1 The Department of Labor and Industries (Department) cited Potelco Inc., (Potelco) for violating three Washington Industrial Safety and Health Act (WISHA)¹safety regulations related to flagging operations at two worksites. The Board of Industrial Insurance Appeals (Board) affirmed the Department's citations and Potelco appeals. Potelco argues that the Board lacked substantial evidence to support its findings that flaggers at Potelco's Bremerton worksite violated WAC 296–155–305(9)(b)and flaggers at Potelco's Bremerton and Bainbridge Island worksites violated WAC 296–155–305(8)(a). Potelco also argues that the Board erred in applying WAC 296–155–305(8)(c)because the regulation is unconstitutionally vague and effectively holds Potelco strictly liable for actions by its temporary employees hired from Labor Ready, a third party vendor. We hold that substantial evidence supports the Board's challenged findings of fact and those findings support the Board's conclusions of law that flaggers at Potelco violated WAC 296–155–305(9)(b)at its Bremerton worksite and violated WAC 296–155–305(8)(a)at both its Bremerton and Bainbridge Island worksites. We also hold that WAC 296–155–305(8)(c)is not unconstitutionally vague when applied to Potelco's conduct at the Bremerton and Bainbridge Island worksites because Potelco was an employer in control of the flaggers at both worksites. We affirm the Board's order.

FACTS

¶ 2 Potelco is an electrical company that builds transmission lines and, at times, requires flaggers at its worksites to control traffic. Potelco hires flaggers as temporary employees from Labor Ready, a third party vendor. In October 2011, at Potelco's request, Labor Ready dispatched flaggers to two of Potelco's worksites in Bremerton and Bainbridge Island.

I. Bremerton Worksite

¶ 3 At its Bremerton Worksite, the flaggers set up a series of three advanced warning signs on the road adjacent to where the flaggers were working to provide drivers with advanced notice of the flaggers and the worksite. Two compliance inspectors for the Department inspected Potelco's Bremerton worksite in October 2011. When they visited the worksite, the inspectors saw a flagger positioned in the roadway directly beside the advanced flagger ahead warning sign. The sign provided no advanced warning to motorists that there was a flagger ahead. The flagger stood in, the lane of traffic allowing for the potential of being struck by a moving vehicle. One of the inspectors recommended citing Potelco for violating WAC 296–155–305(9)(b), which requires an employer to ensure that flaggers are standing either on the shoulder adjacent to the road or on the road in the closed lane prior to the point where road users would come to a stop.²

¶ 4 One inspector concluded that the sign placement violated WAC 296–155–305(8)(c), which requires a “three sign advance warning sequence on all roadways” when a flagging operation is used, because the sign was not in advance of the flagger.³The inspector recommended issuing the citation as a “serious violation”⁴because Potelco's failure to ensure proper advance warning sign spacing endangered the flagger's health and safety and because Potelco has previously been cited for a similar violation.

¶ 5 Potelco's foreman, Larry Hensley, supervised the worksite on the day of the inspection and, after the inspectors advised him of the flagging violations, Hensley stopped work at that site. Based on the inspectors' recommendations, the Department issued Potelco Citation No. 315583005 (the Bremerton citation) for a serious violation of WAC 296–155–305(8)(c), which requires 100 feet of space between advance warning signs, and a serious violation of WAC 296–155–305(9)(b), which requires flaggers to stand on the shoulder adjacent to the road user being controlled or in the closed lane prior to stopping road users.

II. Bainbridge Island Worksite

¶ 6 In October 2011, after receiving an anonymous referral, the Department also inspected Potelco's Bainbridge Island worksite at Winslow Way and Madison Avenue, South.⁵The Department's inspector observed that Potelco's Bainbridge Island worksite did not have the required three advance warning signs to warn motorists of the presence of flaggers. The inspector also observed that there was no signage in two of the directions approaching the worksite, and that the other two directions had one sign each instead of the minimum of three advance warning signs required from each direction according to WAC 296–155–305(8)(a).

¶ 7 Other contractors were performing work several blocks away, and those contractors also erected advanced warning signs. Hensley, Potelco's foreman, also supervised work at the Bainbridge Island worksite. Hensley testified at the Board hearing that he considered all of the area being worked on Winslow Way as one jobsite, but conceded that the other contractors were not responsible for conducting Potelco's traffic control. Based on this investigation, the Department issued Potelco Citation No. 315249847 (the Bainbridge Island citation) for a repeat serious violation of WAC 296–155–305(8)(a)for failing to establish a series of three advance warning signs in each direction of Potelco's worksite.

¶ 8 Based on the inspectors' recommendations, the Department cited Potelco twice for three WISHA safety violations at the Bremerton and Bainbridge Island worksites and assessed three monetary penalties. The Department found that (1) the spacing between advanced warning signs at Potelco's Bremerton worksite was not adequate for an urban street, (2) a Labor Ready flagger stood in the lane of traffic at Potelco's Bremerton worksite prior to road users coming to a stop, and (3) there were not three advanced warning signs as required at Potelco's Bainbridge Island worksite. Potelco appealed both citations to the Board, and the industrial appeals judge (ALJ), who conducted the Board hearing, affirmed in part the two citations,⁶ruling that, based on the “economic realities” test,⁷Potelco was an employer liable for the violations at both worksites. Board Record (BR) at 32. And also ruled that Potelco failed to (1) ensure that its flaggers did not stand in the roadway, thereby exposing the flaggers to the hazards of oncoming drivers, (2) place adequate advance warning signs at its Bremerton worksite, and (3) place adequate advance warning signs at its Bainbridge Island worksite.

¶ 9 Potelco petitioned for review of both citations before the full Board. The Board denied review, adopting the ALJ's proposed decision as its final decision and order. Potelco appealed to superior court. The superior court affirmed the Board, determining that Potelco failed to show that the Board erred in making its factual findings or legal conclusions. Potelco appealed to this court, challenging the Board's findings of fact 2–3 and 12–13, and conclusions of law 2, 4, 7–8 in the Board's Decision and Order. They read as follows in pertinent part,

Findings of Fact

....

2.[O]n October 11, 2011, in Bainbridge Island, Washington, Potelco and Labor Ready employees of [sic] were working at the intersection of Winslow Way and Madison Ave., South. The Potelco workers were repairing a transmission pole. Labor Ready employees were flagging traffic at the worksite. Potelco failed to place three advance warning signs on each of the four roads approaching the intersection of Winslow Way and. Madison Ave., South. As a result, these employees were exposed to a hazard of being struck by passing vehicles at the worksite.

3. [A] substantial probability existed that the Potelco and Labor Ready employees exposed to the hazard described in (2) above would be injured, and that if harm resulted, it would be serious physical harm, including the possibility of fractures, paralysis, or death.

....

12. [O]n December 21, 2011, in Bremerton, Washington, Potelco and Labor Ready employees of [sic] were working near 645 4th Street. The Potelco workers were pulling new wire, underground, from vault to vault. Labor Ready employees were flagging traffic at the worksite. A flagger stood in the roadway next to the “flagger ahead” sign. As a result, these employees were exposed to a hazard of being struck by passing vehicles at the worksite.

13. [A] substantial probability existed that the Potelco and Labor Ready employees exposed to the hazard described in (12) above would be injured, and that if harm resulted, it Wouldbe serious physical harm, including the possibility of fractures, paralysis, or death.

Conclusions of Law

....

2. [O]n October 11, 2011, Potelco committed a repeat serious violation of WAC 296–155–508(8)(a)....⁸

....

4.[O]n December 21, 2011, Potelco committed a serious violations [sic] of WAC Nos. 296–155–508(8)(c) and 296–155–305(9)(b)....⁹

....

7. [The Bainbridge Island citation] No. 315249847 ... is affirmed as modified....

8. [The Bremerton citation] No. 315583005 ... is affirmed as modified....

BR at 37–38, 40–41.

The Board's order also included the following unchallenged finding of fact,

18. [O]n December 21, 2011, in Bremerton, Washington, Potelco and Labor Ready employees of [sic] were working near 645 4th Street. The Potelco workers were pulling new wire, underground, from vault to vault. Labor Ready employees were flagging traffic at the worksite. A flagger stood in the roadway next to the “Flagger Ahead” sign. As a result, these employees were exposed to a hazard of being struck by passing vehicles at the worksite.

BR at 39.

ANALYSIS

¶ 10 The Department cited Potelco twice for committing three WISHA vi...