Pro-Active Home Builders, Inc. v. Wash. State Dep't of Labor & Indus.

7 Wash.App.2d 10

465 P.3d 375

PRO-ACTIVE HOME BUILDERS, INC., Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 51047-2-II

Court of Appeals of Washington, Division 2.

Filed August 7, 2018

Ordered Published January 8, 2019

Aaron Kazuo Owada, Richard Isaiah Skeen, Sean Walsh, AMS Law, P.C., 975 Carpenter Rd. Ne Ste. 204, Lacey, WA, 98516-5560, for Appellant.

Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Lee, A.C.J.

[As amended by order of the Court of Appeals January 8, 2019.]

¶1 Pro-Active Home Builders, Inc. (Pro-Active) appeals seven citations issued by the Department of Labor and Industries (Department) for violations of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. Pro-Active contends that substantial evidence does not support the Board of Industrial Insurance Appeals’ (Board's) finding that Pro-Active had knowledge of the safety violations and the findings of fact do not support the Board's conclusion that Pro-Active failed to prove the conduct was the result of unpreventable employee misconduct. We affirm.

FACTS

A. JOBSITE CITATIONS

¶2 Pro-Active installs siding and trim on new homes. Pro-Active contracted to install siding on two adjoining homes in Tumwater. The homes were two-story buildings that were over 10 feet high.

¶3 On January 13, 2014, one of Pro-Active's superintendents, John Hodges, visited the Tumwater site. Hodges observed a lead worker, Onofre Valadez Gomez, on the roof of one of the homes without safety equipment. He told Valadez to make sure he used his safety line to connect his harness to an anchor. Hodges considered this a verbal warning. Hodges then left Valadez in charge of safety at the site. Hodges testified that Pro-Active employees were trained in the proper use of scaffold and fall protections. Hodges also claimed the company held safety meetings and disciplined workers who violated safety protocol.

¶4 Later that day, Valadez constructed a scaffold that used a ladder as the walkway. Valadez was not trained in how to construct a scaffold. The scaffold was potentially unstable and if it fell could cause death or serious injury.

¶5 While Valadez worked on the roof, Department inspector Raul De Leon arrived at the site and observed from his car Valadez walking on the roof without fall protection. Inspector De Leon also observed Valadez walk on the scaffold without fall protection. Valadez was in charge when De Leon visited the site. Pro Active admits that Valadez was exposed to fall hazards for not using a safety line while on the roof and while walking on the scaffold.

¶6 Inspector De Leon observed at the other home another employee, Martin Gonzalez Verdozco, on a scaffold that used a pump jack scaffold that was not secured to the ground with spikes. Gonzalez testified he erected the scaffold but could not recall if he used spikes. Inspector De Leon took pictures of the scaffold. Gonzalez testified that he could not see spikes in the pictures and that if there were spikes they would show in the picture. Gonzalez, who had worked for Pro-Active for two years, testified he never observed Pro-Active discipline an employee for safety violations other than Valadez on January 13, 2014.

¶7 Pro-Active's owner, Chad Hansen, claimed Pro-Active did not approve of the scaffold that Valadez was standing on and always used spikes to secure the scaffold to the ground

¶8 The Department cited Pro-Active for the following seven WISHA violations:

1-1. The employer did not ensure the employees exposed to fall hazards over 4 feet on steep pitched roofs used appropriate fall protection in violation of WAC 296-155-24609(07)(a).

1-2. The employer did not ensure that scaffolds were erected only when the work is supervised and directed by a competent person AND done by experienced and trained employees selected by the competent person in violation of WAC 296-874-20004.

1-3. The employer did not ensure that scaffolds were properly designed and constructed by a qualified person in violation of WAC 296-874-20002.

1-4. The employer did not ensure that employees working from a scaffold platform were provided with appropriate safe access in violation of WAC 296-874-20020.

1-5. The employer did not ensure that employees working from scaffold platforms at heights over 10 feet used appropriate personal fall arrest systems in violation of WAC 296-874-20052.

1-6. The employer did not ensure that ladders used by employees on site, were used in accordance with manufacture's instructions and in a way they were designed for and intended to be used in violation of WAC 296-876-40005.

1-7. The employer did not ensure that pump jack scaffolds used on site met the requirements of having the bottom part of the poles secured in violation of 296-874-40032.

All violations are characterized as "serious" violations. Board Record at 69-72.

B. PRO-ACTIVE APPEALS TO THE BOARD

¶9 Pro-Active appealed to the Board, arguing that unpreventable employee misconduct excused its violations. The Board rejected Pro-Active's argument, deciding that Pro-Active did not prove that it took adequate steps to correct violations of its safety rules or enforced its safety program. The Board affirmed the citations.

C. PRO-ACTIVE APPEALS TO THE SUPERIOR COURT

¶10 Pro-Active appealed to the superior court, which also rejected its unpreventable employee misconduct defense. The superior court, however, remanded for a further finding of fact regarding employer knowledge. On remand, the Board entered findings of fact and conclusions of law, specifically finding that "Pro-Active Home Builders, Inc. had constructive knowledge of all seven serious violations because it could have discovered or prevented them by exercising reasonable diligence." Clerk's Papers (CP) at 11. The Board further found:

18. Pro-Active Home Builders, Inc., failed to effectively enforce safety rules regarding fall protection and the construction and use of scaffolds on January 13, 2014.

19. Pro-Active Home Builders, Inc., did not take adequate steps to correct violations of its safety rules on January 13, 2014.

20. On January 13, 2014, Pro-Active Home Builders, Inc., did not effectively enforce its safety program.

CP at 12 The Board concluded "Pro-Active Home Builders, Inc., does not meet the requirements for vacating this Corrective Notice of Redetermination ... based on unpreventable employee misconduct." CP at 13.

¶11 Pro-Active again appealed to the superior court, which affirmed the Board's order. Pro-Active now appeals to this court.

ANALYSIS

¶12 Pro-Active argues the Department failed to prove it had actual or constructive knowledge of the violations, and, even if the Department did prove knowledge, Pro-Active should not have been fined because the actions were based on unpreventable employee misconduct. We disagree.

A. STANDARD OF REVIEW

¶13 We review the Board's final order, rather than the superior court's decision, and we sit in the same position as the superior court. Freeman v. Dep't of Soc. & Health Servs ., 173 Wash. App. 729, 736, 738, 295 P.3d 294 (2013).

¶14 We review the Board's findings of fact for substantial evidence. Id. Evidence is substantial where it is sufficient to persuade a fair-minded, rational person of the finding's truth. Raven v. Dep't of Soc. & Health Servs ., 177 Wash.2d 804, 817, 306 P.3d 920 (2013). "We view the evidence and reasonable inferences in the light most favorable to the prevailing party—here, the Department." Frank Coluccio Constr. Co. v. Dep't of Labor & Indus ., 181 Wash. App. 25, 35, 329 P.3d 91 (2014). We review the Board's conclusions of law de novo to determine whether the Board correctly applied the law and whether the Board's findings of fact support its conclusions of law. Hardee v. Dep't of Health & Soc. Servs ., 152 Wash. App. 48, 55, 215 P.3d 214 (2009).

B. EMPLOYER KNOWLEDGE

¶15 Under WISHA, an employer has a general duty to employees to provide employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death and a specific duty to comply with the rules, regulations, and orders promulgated under WISHA. RCW 49.17.060(1), (2) ; J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus ., 139 Wash. App. 35, 43-44, 156 P.3d 250 (2007). " RCW 49.17.180(2) mandates the assessment of a penalty against an employer when a proven violation is ‘serious.’ " J.E. Dunn , 139 Wash. App. at 44, 156 P.3d 250.

¶16 A "serious" violation of a WISHA regulation is defined as follows:

[A] serious violation shall be deemed to exist in a workplace if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such workplace, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

RCW 49.17.180(6).

¶17 When alleging a violation of WISHA regulations against an employer, the Department bears the initial burden of proving the existence of that violation. WAC 263-12-115(2)(b) ; J.E. Dunn , 139 Wash. App. at 44, 156 P.3d 250. When an alleged violation is designated "serious," the Department bears the burden of proving not only the existence of the elements of the violation itself, but also the existence of those additional elements of a "serious" violation enumerated in RCW 49.17.180(6). J.E. Dunn , 139 Wash. App. at 44, 156 P.3d 250 (citing SuperValu, Inc. v. Dep't of Labor & Indus ., 158 Wash.2d 422, 433 n.7, 144 P.3d 1160 (2006) ).

¶18 Accordingly, to establish its prima facie case in regard to a serious violation of a WISHA regulation, the Department must prove each of the following elements:

(1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew

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