Opinion
No. 57968-1-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-18184-2, James D. Cayce, J., entered March 24, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Cox and Ellington, JJ.
The Department of Labor and Industries cited an employer for violating two Washington Industrial Safety and Health Act regulations because an employee failed to use safety equipment while stacking shingles on a roof. The employer contends that where an employee has been provided with the necessary equipment but leaves it in his truck, no violation has been committed by the employer. We disagree. Employers must do more than simply provide safety gear; they must ensure that their employees actually use it. We affirm.
FACTS
Washington Cedar Supply Co., Inc., is a roofing supply delivery company. According to testimony at a hearing before the Board of Industrial Insurance Appeals, the alleged violations occurred on a "wet and cold" morning in October 2003. Two of Cedar's employees were delivering shingles to the roof of a house under construction in Normandy Park. Driving by the site, Department of Labor Industries inspector Michael O'Hagan saw that one of the employees was working on the roof without fall protection gear. He also saw that there was no ladder in place.
Transcript (December 20, 2004) at 18.
O'Hagan parked his truck and asked the employee, Stratton Fletcher, to come down from the roof. O'Hagan cited Cedar for violating the Department's fall protection and ladder rules. See WAC 296-155-24510 (fall protection); WAC 296-155-476 (ladder). He set $10,000 and $2,000 penalties, respectively, for the violations.
Cedar appealed the citations to the Board. An industrial appeals judge heard the case over two days. Fletcher cited family stress in his testimony as the reason he had forgotten to use fall protection gear, even though it was in an equipment box on his truck. He also said the roof was not wet that morning.
The industrial appeals judge affirmed the fall protection violation and vacated the ladder violation. The judge found that the roof was not wet and reduced the penalty for the fall protection violation to $2,240.
The Department petitioned for review to the Board. The Board affirmed the fall protection violation, and imposed a $9,000 penalty. The Board reinstated the ladder violation and imposed a $2,000 penalty. The superior court affirmed the Board. Cedar appeals.
The parties agree that the Department had to prove each violation by a preponderance of the evidence that (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 could have known of the violative condition through the exercise of reasonable diligence, and (5) there is a substantial probability that death or serious physical harm could result from the violative condition. See Wash. Cedar Supply Co. v. State Dep't of Labor Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 (2004) (citing D.A. Collins Constr. Co., Inc. v. Sec'y of Labor, 117 F.3d 691, 694 (2nd Cir. 1997)). For each violation, Cedar contests the proof for the first, second, fourth, and fifth elements.
Applicability of and Compliance with the Fall Protection Rule The fall protection rule requires employers to ensure that fall arrest systems are "provided, installed, and implemented":
When employees are exposed to a hazard of falling from a location 10 feet or more in height, the employer shall ensure that fall restraint, fall arrest systems or positioning device systems are provided, installed, and implemented according to the following requirements.
WAC 296-155-24510. The rule sets forth detailed hardware requirements.
Cedar contends the fall protection rule is merely a hardware requirements section and does not impose upon employers a duty to ensure that employees actually wear safety gear. Under Cedar's reading, an employer's duty ends once adequate equipment has been "provided" for the employee's use. This strained interpretation gives no effect to the terms "installed" and "implemented." To give effect to all words in the rule, it must be read as a requirement for the employer to ensure that the appropriate hardware is actually used by the employee. In so holding, we follow the recent decision in Washington Cedar Supply Co., Inc. v. Department of Labor Indus., 34441-6-II, 2007 Wash. App. LEXIS 482, at *11 (2007) ("WAC 296-155-24510 imposes a duty on employers to ensure that their employees use a fall safety system when working at a location from which they might fall more than 10 feet.").
Cedar protests that such an interpretation takes the rule out of harmony with a companion rule that allows workers to use alternatives to fall protection gear when they work on low-pitched roofs. WAC 296-155-24515. We disagree. A rule requiring employers to ensure that fall protection equipment is implemented on high pitched roofs is consistent with the exception for low-pitched roofs.
Cedar also contends that the rule is unconstitutionally vague. A party raising a vagueness challenge must show, beyond a reasonable doubt, that a rule is so vague that persons of common intelligence must necessarily guess at its meaning and disagree as to its application. Inland Foundry v. Labor Indus., 106 Wn. App. 333, 339, 24 P.3d 424 (2001). Cedar does not label any specific term in the rule vague. Instead, Cedar argues that employers might not know how to ensure compliance. This is an argument that the standard is unworkable, not that it is vague. What Cedar might have done to ensure compliance is addressed later in this opinion in connection with Cedar's defense that compliance was infeasible.
In short, the fall protection rule applies. There is substantial evidence to uphold the Board's finding that Cedar failed to meet it. Although the record includes evidence of Cedar's efforts to train and discipline its employees to ensure implementation of the fall protection rule, Fletcher's presence on a roof more than 10 feet high without the required equipment is evidence that Cedar did not actually ensure implementation.
Applicability of and Compliance with the Ladder Rule
The ladder rule demands that a stairway or ladder "shall be provided at all personnel points of access where there is a break in elevation of 19 inches (48 cm) or more" and no other method of access is provided. WAC 296-155-476(1).
Employers must comply with this rule "before employees begin the work" that requires the use of ladders. WAC 296-155-476(2). These rules apply to all workplaces "where construction . . . is performed." WAC 296-155-005.
Cedar contends the ladder rule does not apply because Cedar's workers are delivery people who are not engaged in construction work. But the ladder rule is not limited to construction workers; rather, it applies to workplaces where construction is performed. Fletcher was cited at a construction workplace.
Cedar says it gave Fletcher an adequate ladder and this satisfied the rule. But the ladder rule requires employers to provide a ladder at "at all personnel points of access where there is a break in elevation of 19 inches". Merely providing a ladder for the employee to carry around is not enough; it must be put in place.
Cedar also argues that the ladder was actually provided at the point of access, based on Fletcher's testimony that his partner had placed a ladder on the roof but then knocked it over. Assuming this to be true, it should have been immediately replaced. But O'Hagan testified that there was no ladder in place to access the roof when he arrived. His testimony was sufficient to support the inference that the work crew was neglecting the ladder rule.
Cedar's Knowledge of the Violative Conditions
A violation will not be sustained if the employer, through reasonable diligence, would not have known of it. Wash. Cedar, 119 Wn. App. at 914.
Cedar contends that, as the employer, it had no way to know that Fletcher was breaking the rules that morning.
Evidence of similar past violations can be sufficient to support a finding that the employer "was on notice that its employees were not complying with its safety requirements." Wash. Cedar, 119 Wn. App. at 916. Cedar had eight recent fall protection violations and two recent ladder violations. The most recent of these violations had become final just one day before the current violations occurred.
By making changes in the safety program or increasing enforcement measures in response to past violations, an employer can overcome the inference that the prior violations establish notice. Wash. Cedar, 119 Wn. App. at 916. Cedar's yard manager testified that an intensified safety program had caused Cedar to perform better on Department inspections and suffer fewer injuries over the past three years. But the record of the hearing does not clearly show when changes to Cedar's safety program occurred or exactly what they were. Moreover, the Board could have rationally concluded that the changes to Cedar's safety program were simply inadequate given the company's record of violations. Under these circumstances, and in deference to the Board's findings in its area of expertise, Wash. Cedar, 119 Wn. App. at 914, we conclude the evidence allowed the Board to find that Cedar knew its employees were not following fall protection rules.
Transcript (December 20, 2004) at 90.
Particularizing the argument to Fletcher, Cedar contends it could not have anticipated his violation because he personally had never been known to violate safety policies in the past. The record of the employee who committed the violation is not dispositive. The Board could conclude that Fletcher was simply another example of a workplace culture in which fall protection was not a priority. The previous violations support the view that management was on notice that stricter training was needed by all employees, not just those personally involved in known violations.
Cedar contends that because the Board did not make an explicit finding as to Cedar's knowledge of the violations, we should presume the court decided the Department did not carry its burden of proving the element of knowledge. Cedar's opening brief contains a cursory reference to the absence of a finding. Only in the reply brief do we find the argument that the absence of an explicit finding on knowledge should be treated as a negative finding. The Department did not have the opportunity to argue that the absence of a finding on knowledge might have been an oversight. The issue was raised too late to warrant consideration. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
In any event, in the absence of some indication in the record that the failure to make a specific finding was intentional, it is unrealistic to treat the absence of a finding as the equivalent of a negative finding. Douglas Northwest v. Bill O'Brien Sons Constr., 64 Wn. App. 661, 682, 828 P.2d 565 (1992). Here, the record does not reflect a deliberate refusal on the part of the Board to make the finding.
Substantial Probability of Serious Bodily Harm
A violation is "serious" if "there is a substantial probability that death or serious physical harm could result" from practices in use in the workplace. RCW 49.17.180(6). "Substantial probability" does not refer to the likelihood that harm will result from the violation. It refers to "the likelihood that, should any harm result from the violation, that harm will be death or serious physical harm." Lee Cook Trucking v. Labor Indus., 109 Wn. App. 471, 477, 36 P.3d 558 (2001). Cedar makes several arguments designed to show that Fletcher's method of accessing the roof was not likely to cause him to fall from the roof. We reject these arguments because the standard is not whether a fall was likely, but whether a fall causing serious physical harm "could" result from the failure to use a ladder or fall protection gear. See RCW 49.17.180(6).
O'Hagan testified that the fall distance from the eave to the ground from the roof Fletcher accessed was 11 feet, 6 inches. The roof above it that Fletcher accessed had a fall distance of 19-feet, 6 inches. O'Hagan testified that a 10-to 20-foot fall could cause broken bones, head trauma, and death. Ignoring O'Hagan's testimony, Cedar cites instead to the testimony of its witnesses that the fall distance was only six feet. O'Hagan's testimony was substantial evidence supporting the Board's finding that the violation was serious, and accordingly it must be affirmed.
Credibility Determinations by the Board
Apart from the argument that substantial evidence did not support the Board's findings, Cedar contends the Board erred in reinstating the ladder violation because the Board is not empowered to substitute its judgment for that of the industrial appeals judge. Cedar is incorrect. It is well settled that the Board has the power to substitute its judgment for that of the industrial appeals judge "on all issues, including credibility of witnesses observed by the examiner and not by the Board". Rosales v. Department of Labor Indus., 40 Wn. App. 712, 715, 700 P.2d 748 (1985).
Rather than attempting to distinguish Rosales, Cedar cites to a case holding that county councils acting in an appellate capacity are bound to defer to the findings of their hearing examiners:
If . . . the Council acts only as an appellate body with its determination based solely on the original record, it is not empowered to substitute its judgment for that of the examiner, and it must sustain the examiner's findings of fact if they are supported by substantial evidence.
Maranatha Mining v. Pierce County, 59 Wn. App. 795, 801, 801 P.2d 985 (1990). Councils may substitute their judgment for that of the hearing examiner if the examiner's decision "constitutes a recommendation only". Maranatha Mining, 59 Wn. App. at 801.
The Maranatha Mining rule does not apply here because the Board is not the same kind of entity as a county council. The Board's rules authorize an industrial appeals judge to issue a "proposed decision and order". WAC 263-12-140. The Board, when reviewing such an order, must issue a "final decision and order." WAC 263-12-155. The final decision and order must resolve "each contested issue of fact and law". WAC 263-12-155. As noted in Rosales, the statute gives the Board alone the duty of interpreting the testimony and making the final decision. Rosales, 40 Wn. App. at 715 (citing RCW 51.52.020).
INFEASIBILITY DEFENSE
Cedar contends the court erred by failing to accept its affirmative defense of infeasibility with respect to the fall protection violation.
Cedar cites only one case in support of its infeasibility argument: Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34-35 (2d Cir. 1994) (decided under the federal Occupational Safety and Health Act). Bancker explains that an employer claiming infeasibility must show that compliance with the standard's literal requirements "was impossible or would have precluded performance of the work." Bancker, 31 F.3d at 34. The employer must also show that it used alternative means of protection not specified in the standard or that alternative means were unavailable. Bancker, 31 F.3d at 34.
Cedar's yard manager, safety inspector, and Stratton Fletcher all testified that Cedar's safety program required employees to wear harnesses and lifelines whenever on a roof: "no exceptions." Employees were required to use a ladder for any jobsite without adequate roof access. Cedar also sent its salespeople on surprise safety inspections. Employees were disciplined for violating safety rules and given money for compliance. The yard manager testified that the only other thing Cedar could do to comply with the fall protection rule was to send a "tag-along" supervisor on every delivery, and this would have been cost prohibitive. O'Hagan, however, testified that an employer could better discover and correct violations of its safety program if, on surprise inspections, the inspector drove a vehicle not easily recognizable to employees. He also explained that an employer could better ensure compliance by requiring workers to put on their harnesses before leaving the yard on deliveries and wear them all day. He explained that harnesses can get wet when kept in a truck's equipment box; workers are less likely to wear wet harnesses. Requiring workers to put their harnesses on before they leave the yard would help keep the harnesses dry. Another reason workers choose not to wear harnesses is because putting them on and taking them off can take up valuable delivery time. If workers wore their harnesses all day, they would not have to spend that time dealing with their harnesses. In light of this testimony, we cannot say the Board's rejection of the infeasibility defense was arbitrary or lacking in substantial evidence.
Brief of Appellant at 46.
Transcript (December 20, 2004) at 77.
PENALTIES
Cedar contends the penalties are excessive.
Under the penalty rules in effect when Cedar committed the violations, the base penalty was determined in part by calculating a violation's "probability." Probability refers to "the likelihood of an injury, illness or disease occurring," and is expressed in whole numbers "from 1 (lowest) to 6 (highest)." WAC 296-800-35026. To determine probability, the Department considers "the number of employees affected and other factors, depending on the situation." WAC 296-800-35028. Other factors include "weather and working conditions" and "use of personal protective equipment". WAC 296-800-35026.
The penalty rules have been recodified, but neither party argues they have changed since 2003 in any relevant way. We cite the 2003 versions.
O'Hagan decided the probability for Cedar's violations was two. He testified that his probability decision relied primarily on the wetness of the roof:
It was early morning, the roof was still damp, wet from the night before, and he wasn't wearing the fall protection. There was no anchorage point installed. There was no rope or anything there for him to grab on if he did fall.
Transcript (December 20, 2004) at 41.
He repeatedly testified that the roof was wet. He also said that the steepness of the roof factored into the decision.
Transcript (December 20, 2004) at 146-147 (O'Hagan); Transcript (December 21, 2004) at 67 (Yard Manager); Transcript (December 21, 2004) at 108 (Yard Manager).
Cedar contends that because O'Hagan refused to climb onto the roof with Fletcher to look at it, the testimony was insufficient to support the probability determination. But there is no reason to believe that O'Hagan needed to climb onto the roof to determine that it was damp and steep.
According to Cedar, photographs taken of the roof that morning — combined with Fletcher's testimony that the roof was dry and testimony by the yard manager that the roof looked dry in the photographs — show that the Board was clearly wrong in finding that the roof was wet. While it is conceivable that photographs could so conclusively show a fact finder's decision to be wrong as to justify reversal, the photographs in this record do not conclusively establish that the roof was wet or dry. O'Hagan's testimony is sufficient to establish the wetness of the roof as a factor supporting the likelihood of injury.
Fletcher testified that the portion of the roof where he was working was a "flat sun deck", and he said he "never worked near the sloped areas." However, he also testified that he got onto the roof by using an indoor window. Therefore, even if there was a flat sun deck at the top of the roof, Fletcher would have had to walk on the sloped portions of the roof to reach it. Fletcher himself testified that it took him approximately 30 seconds to get from the window to the flat area.
The repeat violation statute authorizes enhanced penalties for "any employer who willfully or repeatedly violates the requirements" of a safety regulation promulgated under the Act. RCW 49.17.180(1). The evidence showed that Cedar had at least eight other fall protection violations within the past three years and two other ladder violations during that time. Cedar contends the statute authorizes enhanced penalties for only employer violations, not employee violations, and because they were Fletcher's violations they were not repeats. This is another variation on Cedar's general theme that an employer should not be liable when an employee fails to use safety equipment that has been provided by the employer. Cedar's view of the case is inaccurate because it fails to recognize it is the employer's duty to ensure that fall protection equipment and ladders are not only made available, but actually used. Because all of the violations are attributable to the employer, the Board did not err in enhancing the penalties. Affirmed. WE CONCUR: