Opinion
No. 51207-2-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-03034-3. Judgment or order under review. Date filed: 09/11/2002. Judge signing: Hon. Gregory Canova.
Counsel for Appellant(s), Aaron Kazuo Owada, Northcraft Bigby Owada PC, 720 Olive Way Ste 1905, Seattle, WA 98101-1871.
Counsel for Respondent(s), Bourtai Hargrove, Attny Gen Ofc, 4224 6th SE Rowesix Bldg 1, PO Box 40121, Olympia, WA 98504-0121.
John R. Wasberg, Ofc of The Atty Gen, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
The Department of Labor and Industries cited Puget Sound Masonry and Restoration for allowing an employee to work on partially dismantled scaffolding without fall protection. The Department of Labor and Industries issued a parallel citation to Turner Construction Company. Turner Construction Company appeals. Turner Construction Company argues that it complied with all established supervision requirements. We affirm.
FACTS
In March 2000, Turner Construction Company (Turner) was working on a renovation project at the Palmer Court building in Seattle. Turner was the general contractor for this project. Turner hired Puget Sound Masonry and Restoration (PSMR), a subcontractor, to work on the exterior of the Palmer Court building. PSMR used scaffolding to reach certain areas of the exterior. Turner superintendent Rick LaFrance was responsible for supervising the project, including oversight of PSMR's work. Pursuant to Turner policy, LaFrance was required to conduct daily walk-around inspections of both the interior and exterior of the Palmer Court building. On the March 31, 2000 walk-around inspection report, LaFrance noted that PSMR had finished work on the building's north side and was in the process of dismantling that side's scaffolding. The record does not state whether he conducted inspections on the weekend of April first or second. Chester Ray, a safety inspector for the Department of Labor and Industries (the Department), viewed the Palmer Court worksite on April 3, 2000. LaFrance did not conduct a walk-around inspection on April 3, 2000. While touring the site, Ray saw Fredrick Williams, a PSMR employee, working on partially dismantled, unsafe scaffolding on the building's north side. Ray asked the worker to come down. While touring the work-site Ray also noted a PSMR masonry saw that was missing the grounding pin from the power cord. Ray determined that the cord exposed PSMR employees to the hazard of a minor shock. Ray issued serious violations to PSMR and Turner for the scaffolding, pursuant to WAC 296-155-100(1)(a) and general violations to both for the masonry saw. At Turner's hearing, Ray testified that he believed Turner knew of the unsafe scaffolding because he had heard that Turner personnel were on-site continuously and because in his opinion the violation was easily discoverable.
ANALYSIS I. Standard of Review
Agency findings of fact will be upheld if supported by substantial evidence when viewed in light of the entire record. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 411, 914 P.2d 750 (1996) (citing Valentine v. Department of Licensing, 77 Wn. App. 838, 844, 894 P.2d 1352 (1995)). "Substantial evidence is `evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.'" Valentine, 77 Wn. App. at 844 (quoting Nghiem v. State, 73 Wn. App. 405, 412, 869 P.2d 1086 (1994)). A reviewing court may reverse an administrative decision when that decision is based on an error of law, not based on substantial evidence, or is arbitrary or capricious. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). The Board of Industrial Insurance Appeals (the Board) publishes decisions it designates as "significant." Significant decisions are persuasive authority for appellate courts. See Martini v. Employment Sec. Dep't, 98 Wn. App. 791, 795, 990 P.2d 981 (2000). Though the Board's interpretations are not binding on this court, they are entitled to great deference. Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, 138, 814 P.2d 629 (1991).
II. A Safe and Healthful Working Environment
Turner argues that its safety program was effective in practice. It claims that Ray incorrectly cited Turner pursuant to WAC 296-155-100(1)(a), of the Washington Industrial Safety and Health Act (WISHA) and Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990). The Washington Administrative Code (WAC) 296-155-100(1)(a) provides:
(1) It shall be the responsibility of management to establish, supervise, and enforce, in a manner which is effective in practice:
(a) A safe and healthful working environment.
In Stute, the Washington State Supreme Court held that a general contractor must maintain a safe and healthful working environment for all workers at a work-site. Stute, 114 Wn.2d at 460-61. The Department contends that: the mere fact that a WISHA inspector inadvertently discovered the [PSMR] employee working in an area open to public view on a manifestly hazardous scaffold shows both that the employer could have discovered the violation with the exercise of reasonable diligence and that any purported safety program had not been effectively communicated and enforced.
A contractor is not required to maintain absolute vigilance over a work-site and will not be held strictly liable for safety violations. In re: Exxel Pacific Inc., BIIA 96 W182 1998 WL 718040, 12, 15 (1998). If Turner had no notice of the violation, despite adequate safety inspections, the citation would not be just. But, Turner had notice. Turner learned that PSMR had begun to dismantle the scaffolding on March 31, 2000. Nonetheless, Turner failed to conduct a walk-around inspection on Monday, April 3, 2000, to determine if the scaffolding was completely dismantled or was still in use.
The Board designated this case significant. While persuasive the Board's decisions are not binding on this court. Tri, 117 Wn.2d at 138; See also Martini, 98 Wn. App. at 795.
Washington requires general contractors to conduct a walk-around safety inspection at least once every week. WAC 296-155-110(9)(a). More inspections may be required depending on the safety issues at a particular worksite. WISHA Regional Directive (WRD) 27. Turner policy required daily safety inspections for the Palmer Court worksite. Turner knew that a partially dismantled scaffolding presented a dangerous condition, yet Turner did not follow up on Monday to see that the scaffolding was not in use and completely taken down.
Despite Turner's failure to inspect on April 3, it maintains that its safety program was effective in practice under In re: Exxel Pacific Inc., BIIA 96 W182 at 15. In Exxel the Board determined that the existence of a safety violation does not automatically establish that a general contractor violated its duty. Exxel, BIIA 96 W182 at 15. We agree with the Board's decision, but it is not entirely on point. The general contractor is responsible for making certain that subcontractors hold weekly safety meetings. WAC 296-155-110; Stute, 114 Wn.2d at 460. The construction company in Exxel made certain that its subcontractors held such meetings. Exxel, BIIA 96 W182 at 11. Turner, on the other hand, gave its subcontractors the option to hold safety meetings and report back about them, but could provide no evidence that they actually held any safety meetings. Turner did not establish that it had ensured the safety concerns were communicated to the work force. It therefore did not show an effective safety program was in place and that the violations occurred in spite of that program. Consequently, we decline to apply Exxel.
While persuasive the Board's decisions are not binding on this court. Tri, 117 Wn.2d at 138; See also Martini, 98 Wn. App. at 795.
The Department contends that Turner's failure to discipline LaFrance after the Department cited him was evidence of prior safety violations. The Department's reasoning is flawed. Failure to discipline may be evidence of an ineffective safety program, which may give rise to a separate citation. However, we cannot use Turner's failure to discipline after citation for a different violation as evidence that the violation had occurred.
Based on the facts in this record, the Board's determination that Turner failed to exercise due diligence to maintain a safe and healthful working environment is supported by substantial evidence. Both violations are established. Accordingly, we affirm the Board of Industrial Insurance Appeals.
SCHINDLER and BECKER, concur.