Section 263-12-059 - Appeals arising under the safety and health pro-visions of the Washington Industrial Safety and Health Act; contents of notice of appeal; notice to affected employees; request for stay of abatement pending appeal(1)Contents of notice of appeal in WISHA appeals. In all appeals arising under the safety and health provisions of the Washington Industrial Safety and Health Act, the notice of appeal should contain where applicable:(a) The name, mailing address, telephone number, and email address of the appealing party and of the party's representative, if any.(b) A statement identifying the citation, penalty assessment, or notice of abatement date appealed from. This requirement may be satisfied by attaching a copy of the citation, penalty assessment, or notice of abatement date.(c) The name and address of the representative of any labor union representing any employee who was or who may be affected by the alleged safety violation(s). If the employer has no affected employees who are members of a union, the employer shall affirmatively certify that no union employees are affected by the appeal.(d) The reason why the appealing party considers such order or decision, to be unjust or unlawful.(e) A statement of facts in full detail in support of each stated reason.(f) The specific nature and extent of the relief sought.(g) The place, most convenient to the appealing party and that party's witnesses, where board proceedings are requested to be held.(h) A statement that the person signing the notice of appeal has read it and that to the best of his or her knowledge the contents are true.(i) The signature of the appealing party or the party's representative. In all appeals where a stay of abatement of alleged violation(s) pending appeal is requested, the notice of appeal must comply with additional requirements set forth in subsection (3) of this section.
(2)Employer duty to notify affected employees.(a) In the case of any appeal by an employer concerning an alleged violation of the safety and health provisions of the Washington Industrial Safety and Health Act, the employer shall give notice of such appeal to its employees by either: (i) Providing copies of the appeal and applicable division of safety and health citation and notice or corrective notice of redetermination to each employee member of the employer's safety committee; or(ii) By posting a copy of the appeal and applicable division of safety and health citation and notice or corrective notice of redetermination in a conspicuous place at the work site at which the alleged violation occurred. Any posting shall remain during the pendency of the appeal.(b) The employer shall also provide notice advising interested employees that an appeal has been filed with the board and that any employee or group of employees who wish to participate in the appeal may do so by contacting the board. Such notice shall include the address of the board.(c) The employer shall file with the board a certificate of proof of compliance with this section within 14 days of issuance of the board's notice of filing of appeal. A certification form is provided on the board's website.(d) If notice as required by this subsection is not possible or has not been satisfied, the employer shall notify the board in writing of the reasons for noncompliance or impossibility. If the board, or its designee, determines that it is not possible for the employer to provide the required notice to employees, it will prescribe the terms and conditions of a substitute procedure reasonably calculated to give notice to affected employees, or may waive the affected-employee-notice requirement. If the employer requests a stay of abatement pending appeal, and desires to assert the claim of impossibility of notice to employees, the employer must include its claim of impossibility, together with facts showing impossibility, in its notice of appeal.(3)Request for a stay of abatement in WISHA appeals.(a)How made. Any request for stay of abatement pending appeal must be included in the notice of appeal. An employer may request a stay of abatement pending appeal by placing "STAY OF ABATEMENT REQUESTED" prominently on the first page of the notice of appeal in bold print. The board will issue a final decision on such requests within 45 working days of the board's notice of filing of appeal.(b)Union information.(i)Appeals from corrective notice of redetermination. In appeals where the employer has requested a stay of abatement of the violation(s) alleged in the corrective notice of redetermination, the employer shall include in the notice of appeal the names and addresses of any unions representing workers for the employer as required by subsection (1) of this section. If the employer has no affected employees who are members of a union, the employer shall affirmatively inform the board that no union employees are affected by the appeal.(ii)Appeals from citation and notice. Where an employer files an appeal from a citation and notice and the department of labor and industries chooses to forward the appeal to the board to be treated as an appeal to the board, the employer shall provide the board with the names and addresses of any unions representing workers for the employer as required by subsection (1) of this section. If the employer has no affected employees who are members of a union, the employer shall inform the board that no union employees are affected by the appeal. The employer shall provide this information to the board within 14 days of the date of the board's notice of filing of appeal.(c)Supporting and opposing documents.(i)Supporting documents. In appeals where the employer has requested a stay of abatement pursuant to RCW 49.17.140, the employer shall, within 14 calendar days of the date of the board's notice of filing of appeal, file with the board supporting declarations, affidavits, and documents it wishes the board to consider in deciding the request. The employer must also simultaneously provide supporting documents to the department and any affected employees' safety committee or union representative. Supporting affidavits or declarations shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Copies of individual relevant supporting documents shall be specifically referred to in the affidavit and shall be attached to the affidavit. Such supporting documents shall not be excluded from consideration based on a hearsay objection. All such affidavits and supporting documents shall be limited to evidence addressing: (A) Whether there is good cause to stay the abatement of the violation(s) set forth in the citation and notice or corrective notice of redetermination; and(B) Whether it is more likely than not that a stay of the abatement of the violation(s) would result in death or serious physical harm to a worker.(ii)Opposing documents. Within 28 calendar days of the date of the board's notice of filing of appeal, the department of labor and industries and any affected employees shall file with the board any declarations, affidavits, and documents they wish the board to consider in deciding the request. The department must also simultaneously serve these opposing documents on the employer and any affected employees' safety committee or representative. The employees must also simultaneously serve the opposing documents on the employer and the department. Supporting and opposing affidavits and declarations shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Copies of individual relevant supporting documents shall be specifically referred to in the affidavit and shall be attached to the affidavit. Such supporting documents shall not be excluded from consideration based on a hearsay objection. All such affidavits and supporting documents shall be limited to evidence addressing:(A) Whether there is good cause to stay the abatement of the violation(s) set forth in the citation and notice or corrective notice of redetermination; and(B) Whether it is more likely than not that a stay of the abatement of the violation(s) would result in death or serious physical harm to a worker.(4)Denial of request to stay abatement. If any of the following procedural or substantive grounds are present, the board will deny the request for a stay of abatement pending appeal:(a) The request for stay of abatement is not contained in the employer's notice of appeal as required by RCW 49.17.140 (5)(a).(b) The employer fails to include union information as required in subsection (3)(b) of this section.(c) The employer fails to timely file a certification that its employees have been notified about the appeal and the request for stay of abatement as required in subsection (2) of this section.(d) The employer fails to file supporting documents within 14 calendar days of the issuance of the board's notice of filing of appeal as required in subsection (3)(c)(i) of this section.(f) The only violation alleged by the department of labor and industries is a general violation.(g) The employer fails to show good cause for a stay of abatement in its supporting documents.(h) The preliminary evidence shows it is more likely than not that a stay would result in death or serious physical harm to a worker.(5)Expedited nature of requests to stay abatement/requests to enlarge time. Requests to stay abatement pending appeal must be decided in accordance with a strict statutory timeline. Oral argument will not be permitted. The board will grant requests to enlarge time to file documents or certifications only after receipt of a written motion with supporting affidavit filed with the board and all other parties before the filing deadline and only upon a showing of good cause.Wash. Admin. Code § 263-12-059
Amended by WSR 14-24-105, Filed 12/2/2014, effective 1/2/2015Amended by WSR 16-24-054, Filed 12/2/2016, effective 1/2/2017Amended by WSR 17-24-121, Filed 12/6/2017, effective 1/6/2018Amended by WSR 22-19-009, Filed 9/9/2022, effective 10/10/2022Amended by WSR 23-23-010, Filed 11/1/2023, effective 12/2/2023Statutory Authority: RCW 51.52.020. 11-20-003, § 263-12-059, filed 9/21/11, effective 10/22/11; 03-02-038, § 263-12-059, filed 12/24/02, effective 1/24/03; 01-09-032, § 263-12-059, filed 4/11/01, effective 5/12/01.