Court: Court of Appeals of Washington; September 22, 2015; Washington; State Appellate Court
The Department of Labor and Industries cited Potelco Inc. for violations of three safety regulations under the Washington Industrial Safety and Health Act of 1973 (WISHA) at two work sites. The Board of Industrial Insurance Appeals affirmed these citations, leading Potelco to appeal. Potelco contended that the Board lacked substantial evidence to support findings of violations regarding flagging operations at its Bremerton and Bainbridge Island sites, specifically under WAC 296-155-305(9)(b) and WAC 296-155-305(8)(a). Potelco also claimed that WAC 296-155-305(8)(c) was unconstitutionally vague, resulting in strict liability for actions by temporary employees hired from a third-party vendor, Labor Ready.
The court found substantial evidence supporting the Board's findings that Potelco's flaggers violated WAC 296-155-305(9)(b) at Bremerton and WAC 296-155-305(8)(a) at both sites. Moreover, the court ruled that WAC 296-155-305(8)(c) was not unconstitutionally vague, as Potelco was responsible for the flaggers' actions at both locations.
Potelco, an electrical company, uses flaggers to control traffic at its work sites and employs them through Labor Ready. In October 2011, compliance inspectors observed that at the Bremerton site, a flagger was improperly positioned in the roadway, creating a safety hazard and violating WAC 296-155-305(9)(b). The inspectors noted that the advanced warning sign was incorrectly placed, failing to provide adequate warning to motorists, which violated WAC 296-155-305(8)(a). The inspectors classified these violations as serious, citing the potential danger to the flagger and referencing Potelco's previous violations. Consequently, the Department issued Citation No. 315583005 to Potelco for the serious violations identified during the inspection.
In October 2011, following an anonymous tip, the Department inspected Potelco's work site on Bainbridge Island and found it lacked the required three advance warning signs in each direction to alert motorists of flaggers. Specifically, two directions had no signs, and the other two had only one sign each, violating WAC 296-155-305(8)(a). Despite other contractors nearby having appropriate signage, Potelco’s foreman, Hensley, admitted that those contractors were not responsible for Potelco’s traffic control. Consequently, Potelco received Citation No. 315249847 for a repeat serious violation for inadequate warning signs. The Department also cited Potelco for three WISHA violations at both the Bremerton and Bainbridge work sites, noting unsafe conditions including improper spacing of warning signs and flaggers standing in traffic lanes. Potelco appealed the citations, but the industrial appeals judge (ALJ) upheld them, affirming that Potelco was liable for the violations based on the 'economic realities' test. The ALJ found Potelco failed to protect its flaggers and provide adequate warning signage. Upon Potelco's petition for review, the Board denied it, adopting the ALJ’s decision. Potelco’s subsequent appeal to superior court was affirmed, as the court found no errors in the Board’s findings or conclusions. Potelco then appealed to a higher court, challenging specific findings and conclusions from the Board’s decision, particularly regarding the lack of warning signs and the exposure of flaggers to traffic hazards at the worksite.
A significant probability existed that employees of Potelco and Labor Ready working near 645 4th Street in Bremerton, Washington, on December 21, 2011, were at risk of serious injury due to exposure to traffic hazards while pulling new underground wire and flagging vehicles. Injuries could include fractures, paralysis, or death. Potelco was found to have committed multiple serious violations of Washington Administrative Code (WAC) regulations, specifically WAC 296-155-305(8)(a), (8)(c), and (9)(b), as affirmed by the Board. The citations from both Bremerton and Bainbridge Island were modified but upheld. The evidence supported the findings that Potelco’s flaggers were responsible for the violations and that Potelco directed traffic control at both work sites. The Board's conclusions of law were affirmed based on substantial evidence.
WISHA aims to ensure safe working conditions in Washington, interpreted liberally as a remedial statute (RCW 49.17.010). The Department of Labor is responsible for enforcing WISHA regulations and must prove any alleged violations. In cases of 'serious' violations, the Department must establish five elements: applicability of the cited standard, non-compliance with the standard, employee exposure to the condition, employer knowledge or reasonable diligence regarding the condition, and a substantial probability of serious harm resulting from the violation. Appeals to WISHA decisions are based on the Board's record, with findings of fact upheld if supported by substantial evidence. Substantial evidence is defined as sufficient to convince a fair-minded person of its truth, and the reviewing body does not reweigh evidence. Unchallenged findings are accepted as true. The agency's interpretations are granted substantial deference, provided they are plausible and align with legislative intent. Statutory interpretation is reviewed de novo, focusing on the statute's plain language, and ambiguities may require further analysis through statutory construction and case law. Constitutional challenges are also reviewed de novo, with the burden on the challenging party to prove unconstitutionality.
Potelco contests the Board’s findings of fact 2 and 3 and conclusions of law 2 and 7 regarding a citation related to its Bainbridge Island work site, asserting it did not violate WAC 296-155-305(8)(a) concerning the placement of advance warning signs. Potelco claims compliance with the regulation, arguing that sufficient advance warning signs were already in place around the work site. However, it was determined that substantial evidence supports the Board's findings, confirming Potelco's violation of the regulation by not establishing the required three advance warning signs in each direction and allowing a flagger to work in the roadway.
Potelco further argues that reliance on signage from nearby flagging operations should suffice, citing the regulation's silence on inter-operation reliance and the Federal Highway Administration’s guidance from the Manual on Uniform Traffic Control Devices (2009) that discourages excessive signage. Nevertheless, Potelco does not dispute the applicability of the sign placement requirement or its failure to meet it, as the regulation mandates three signs for roadways with speed limits under 45 mph. Observations revealed inadequate signage at Potelco's work site compared to nearby operations.
Moreover, Potelco misinterprets the Board’s conclusion regarding the proximity required for using neighboring work site signs, which actually mandated that Potelco’s signs be placed at specified distances from its own site. The Board found that the neighboring work site was not within the necessary distance for Potelco to rely on its signage, reinforcing the citation's validity.
Potelco was required by WAC 296-155-305(8)(a) to install three warning signs in each direction from its work site, rather than depending on other work sites. The Department's interpretation of this regulation is deemed plausible and consistent with legislative intent, thus warranting deference. Potelco's objection, which cited the MUTCD's discouragement of excessive signage, was rejected as it conflicted with the plain language of the regulation. The Board found that Potelco failed to place the requisite number of warning signs at its Bainbridge Island site, confirming violations of WAC 296-155-305(8)(a).
Regarding the Bremerton work site, Potelco contested the Board's findings and conclusions, arguing that the inspector's assessment of sign spacing lacked substantial evidence for concluding a violation of WAC 296-155-305(8)(c). The Board's findings indicated that Potelco did not properly space advance warning signs and did not position flaggers in compliance with the regulations. Potelco claimed that the flaggers’ setup met the regulation requirements, but the Department maintained that the flagger’s position behind a warning sign violated the advance notice requirement. While Potelco acknowledged the flagger’s proximity to the sign, it argued that reduced spacing is permissible due to roadway conditions. However, the Department contended that the signs must maintain a meaningful distance from flaggers to serve their purpose effectively. The regulation allows for some reduction in spacing in urban areas, but the Board found that Potelco's approach did not meet the necessary criteria for adequate advance warning.
Potelco did not contest the finding that Labor Ready flaggers were positioned next to the advanced warning sign, exposing them to vehicular hazards at the worksite. This finding substantiates the Board’s conclusions that Potelco violated the Washington Industrial Safety and Health Act (WISHA). Potelco failed to provide evidence against the Department's interpretation of the regulation, leading to the affirmation of the Board's conclusions regarding the violation of WAC 296-155-305(8)(c).
Potelco argued that the lack of specificity in WAC 296-155-305(8)(c) made it unconstitutionally vague, which the Department countered by asserting that the regulation does not allow flaggers to stand directly next to the warning signs, even if distance can be adjusted based on road conditions. The court aligned with the Department's interpretation, affirming the presumption of constitutionality for statutes and noting that the burden of proof lies with the party challenging the regulation.
The inspector noted that Potelco's flagger was inadequately spaced from the warning signs, failing to provide appropriate advance warning. Potelco's arguments regarding potential ambiguities in the regulation were dismissed, as the regulation clearly states that the warning sign must precede the flagger. The Board's finding that the flagger was too close to the sign remained unchallenged, and thus was accepted as fact. Consequently, the court concluded that the regulation was not unconstitutionally vague and that substantial evidence supported the Board's determination of Potelco's violation of the regulation.
Potelco contends it should not be liable for safety violations attributed to Labor Ready's flaggers, citing the 'economic realities' test. However, the Department asserts that Potelco remains responsible for safety compliance despite the flaggers being temporary employees. The Board found Potelco liable, emphasizing that under the Washington Industrial Safety and Health Act (WISHA), employers are accountable for their employees' safety, including those from temporary agencies.
The 'economic realities' test examines several factors to determine employer status, including who workers view as their employer, who pays their wages, and who controls their work. The primary consideration is the employer's right to control the workers. Potelco's argument that the Board's conclusion of its control over flaggers was based solely on the presence of a Potelco foreman is rejected. Evidence indicated that the flaggers and foreman recognized the foreman as the one in charge, supporting the Board's finding that Potelco was the employer.
Although Potelco suggested that Labor Ready paid the wages, it failed to provide evidence, and the control factors favored the Board’s determination of Potelco’s employer status. Specific Board findings confirmed Potelco's control over the flagging operations at both work sites, and since Potelco did not challenge these findings, they are considered established facts on appeal. Furthermore, the testimony of Hensley, the site supervisor, claiming he did not direct the Labor Ready flaggers does not undermine the Board's determination of Potelco's control.
Hensley testified that he was in control of the job site, with no other contractors responsible for his duties. He acknowledged that Potelco is responsible for ensuring proper road flagging and stated that he would replace non-compliant flaggers from Labor Ready. Despite Labor Ready flaggers having a separate supervisor, Hensley noted that he had only seen that supervisor at work sites twice in his extensive experience. When asked about responsibility for adequate signage, Hensley indicated it was a shared responsibility among all workers.
Factors supporting Potelco's status as an employer include its control over workers and the inability of its supervisors to directly hire or fire flaggers, who could only be replaced through Labor Ready. Potelco conceded that multiple employers can share responsibility for the same employees.
Potelo argued against the Board's citations, claiming they would impose strict liability for non-employees' conduct and that constructive knowledge alone was insufficient for a violation. However, the Department clarified that to establish a WISHA violation, it must prove several elements, including the application of the cited standard, unmet requirements, employee exposure to violations, and employer knowledge of the violation. The Department must demonstrate either actual or constructive knowledge, which it successfully did.
The conclusion affirms that Potelco's contractors violated specific WAC regulations, supported by substantial evidence, and that Potelco's conduct did not render the regulations unconstitutionally vague. The Board's decision and order are upheld.
Johanson, C.J. and Bjorgen, J. concurred, with review denied at 185 Wn.2d 1023 (2016). Under WAC 296-155-305(9), employers and contractors must ensure flagger stations are adequately distanced from workspaces to allow road users sufficient stopping time, with specific distance requirements based on speed limits—55 feet for 25 mph zones, adjustable for site conditions. Flaggers must also position themselves safely, only entering moving traffic lanes after halting vehicles. WAC 296-155-305(8) mandates advance warning signs based on roadway speed, requiring a three-sign sequence for roads under 45 mph and a four-sign sequence for 45 mph or higher, with precise spacing of at least 100 feet, subject to urban adjustments. A serious violation under RCW 49.17.180 occurs when conditions pose substantial risk of death or serious harm, and the Department must prove both the existence of a serious violation and that the employer knew or should have known about it. The speed limit at the worksite was 25 mph. The ALJ dismissed two traffic plan violations, unchallenged by the Department. The citation indicated violations of WAC provisions, with inaccuracies noted in the conclusions of law. The Department argued against Potelco's reliance on the MUTCD for distance recommendations and noted the requirement for flagger warning signs. On December 21, 2011, Potelco employees, while engaged in underground wire work, had flaggers positioned improperly in the roadway, exposing them to vehicle hazards. Potelco did not contest a specific violation concerning flagger safety, waiving this issue on appeal, and the Board's conclusion was upheld.
