Potelco, Inc., Appellant V. State Of Washington Department Of Labor & Industries, Respondent (Majority and Order)

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Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHIN& ORber 17, 2015 DIVISION II POTELCO, INC, No. 46256- 7- 11 Appellant, ORDER GRANTING MOTION TO PUBLISH OPINION V. STATE OF WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. The respondent, Department of Labor and Industries, filed a motion to publish the opinion that was filed in that matter on September 22, 2015. After consideration, it is hereby ORDERED that the final paragraph, which reads as follows, shall be deleted: " A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it further ORDERED that this opinion is now published. DATED this PANEL: day of _ 0 Y /E,_. 2015. Jj. Johanson, Bjorgen, Sutton FOR THE COURT: We SUTTON, . concur: J' ) HANSON, ( . 3 C J_ BJ _ BJC' cGE' _ J is so ordered." It is Filed Washington, State Court of Appeals Division. Two WASHINGber IN THE COURT OF APPEALS OF THE STATE OF 22, 2015 DIVISION II No. 46256 -7 -II POTELCO, INC., Appellant, V. UNPUBLISHED 'OPINION DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. SUTTON, J. - The Departinent of Labor and Industries. (Department) cited Potelco Inc., Potelco) for violating three Washington. Industrial Safety regulations related to flagging operations at two worksites: and Health Act ( WISHA)' safety The Board of Industrial. Insurance Appeals (Board) affirmed the Departrnent' s citations and Potelco appeals. Potelco argues that,the Board lacked substantial evidence to support its findings that ,flaggers at Potelco' s Bremerton worksite violated WAC 296- 155- 305( 9)( b) and flaggers at ,Potelco' s Bremerton and Bainbridge Island worksites violated applying WAC WAC 296- 155- 305( 8)( 296- 1557305( 8)( c) a). Potelco- also argues that the Board, erred ;in because the regulation is unconstitutionally vague and. effectively holds Potelco strictly liable for actions by its temporary employees hired from.Labor Ready, a third party vendor. We 'hold, that substantial evidence supports the. Board' s challenged. findings of fact and those findings support the Board' s conclusions, of lain that flaggers at Potelco violated WAC 296- 155- 305( 9)( b) at its Bremerton worksite and violated WAC 296- 155- 305( 8)( a) Ch. 49. 17: RCW No. 46256 -7 -II at both its Bremerton and Bainbridge Island worksites. We also hold that WAC 296- 155- 305( 8)( c) is not unconstitutionally vague when applied to Potelco' s conduct at Bremerton and Bainbridge Island worksites because Potelco was an employer in control of the flaggers atboth worksites. We affirm the Board' s order. FACTS Potelco is an, electrical company that builds transmissionlines and, at times, requires flaggers at its worksites to traffic. control Potelco hires flaggers as temporary employees .from Labor Ready, a third party vendor. In October 2011, at.Potelco' s request, Labor Ready dispatched flaggers to two of Potelco' s worksites in Breltierton and Bainbridge Island. I. BREMERTON WORKSITE At its Bremerton worksite, the flaggers set.up a series of three advanced warning signs on the road adjacent to where the flaggers were working to provide drivers with advanced notice of the flaggers and the worksite. Two compliance inspectors for the Department inspected Potelco' s Bremerton worksite in, October 2011. When they visited the worksite, the inspectors saw a flagger in the roadway positioned directly beside the advanced, flagger, ahead warning sign. The sign provided no advanced: warning to motorists that there was a flagger ahead. The flagger stood in, the lane of inspectors traffic allowing for the recommended potential of being struck by a moving vehicle. One of the citing Potelco for violating WAC 296- 155- 305( 9)( b), which requires an 2 No. 4625,6 -7 -II employer to ensure that flaggers are standing either on the shoulder adjacent to the road. or on the road in the closed lane prior One inspector to the concluded point where road that the users would come to a stop. sign placement violated Z WAC 296- 155- 305( 8)(.), which requires .a " three sign advance warning sequence on all roadways" when a flagging operation is used, because the sign was not in advance of the flagger.3 The inspector recommended issuing the z WAC 296- 1.55- 305( 9) provides . n part, i Employers, responsible contractors and/ or project owners must make sure that: a) Flagger stations are located far enough in advance of the work space so that the approaching road users will have sufficient distance to stop before entering the work space.... b) Flaggers stand either on the shoulder adjacent to the road user being controlled. or in the closed lane prior to stopping road users. A flagger must only stand in the lane being used. by moving road users after road users have stopped: The regulation. also provides a table designating that, in speed zones of 25 miles per hour, the minimum. distance between flagger stations and the work space must be a minimum of 55 feet, but t] his spacing may be reduced to fit roadway and worksite conditions. Distances greater those"listed in the table are acceptable." WAC 296- 155- 305( 9)( a). that "[ than s WAC 296- 155- 305( 8) provides in part, Advance warning signs. a) Employers must provide the ,following on all flagging operations: A three sign advance warningsequence on all roadways with a speed limit below 45 mph. A four sign. advance warning sequence on, all roadways with a45 :nph or higher i speed limit. b) Warning signs must reflect the actual condition of the work. zone. When not in use, warning signs must either be taken down or covered. c) Employers must make sure to follow Table 1 for spacing of advance warning sign placement. The regulation also provides a table designating that distances between advanced warning b signs should . e no roadway less than 100 feet, but that "[ t]his conditions." spacing maybe reduced in urban areas to fit The table further WAC 296- 155- 305( 8)(.). provides, " If terrain does not allow a motorist to see the flagger from the " flagger ahead" sign, the distance between the flagger and the sign must be shortened to allow visual ; ontact, but in no case can the distance be less than c 100 feet]." WAC 296- 155- 305( 8)(.). 3 No. 46256 - -II 7 citation.as a " serious violation"4 because Potelco' s failure to ensure proper advance warning sign, spacing endangered the flagger' s health and safety and because Potelco has previously been cited for a similar violation. Potelco' s foreman, Larry Hensley,. supervised the worksite on the day of the .inspection and, after the inspectors advised him of the flagging:violations, Hensley stopped. work at that site: Based on the inspectors' recommendations, the Department issued Potelco Citation, No. 315583005( the Bremerton citation) for a serious violation of WAC 296- 155- 305( 8)( c), which requires 1.00 feet of space between advance warning signs, and a serious violation ofWAC 296155- 305( 9)( b), which .requires flaggers ,to stand on the shoulder adjacent to the :road user being; controlled or in the closed lane prior to stopping road users. II. BAINBRIDGE ISLAND WORKSITE In.Qctober 201. 1, after receiving an anonymous referral, the Department also inspected. Potelco' s Bainbridge Island worksite at Winslow Way .and Madison Avenue, South. 5 The Department' s inspector observed that Potelco' s Bainbridge Island worksite -did not have the 4 RCW 49. 17. 180 mandates the assessment of a penalty against an employer when' a proven violation is " serious." A " serious violation" of a WISHA regulation is defined as, A] serious violation shall be deemed.to exist in a work place 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). of a " serious The Department has the burden of proving both the existence ofthe elements violation and the existence of those additional elements of a serious violation. enumerated in RCW 49. 17: 180( 6). I The speed limit at the site was 25 mph. 0 No. 46256 -7 -II required three advance warning signs to warn motorists of the presence of flaggers. The inspector, also observed that there was no signage in.two of the directions approaching the worksite, and that the other two directions had one sign each instead of the minimum of three advance warning signs required. from each direction according to WAC 296-155- 3'05( 8)( a). Other contractors were performing work several blocks away, and those contractors also erected advanced Bainbridge Island warning signs. worksite. Hensley, Potelco' s foreman, also supervised work at the Hensley testified at the Board hearing that he considered all of the area being worked on. Winslow Way as one jobsite, but conceded that the other contractors were not responsible for conducting Potelco' s traffic control. Based on this investigation, the Department issued Potelco Citation No. 31.5249847 ( the Bainbridge Island citation) for a repeat, serious violation of WAC 296- 155- 305( 8)( 4) for failing to. establish a series of three advance warning signs in each direction of Potelco' s worksite. Based on the inspectors.' recommendations, the Department cited Potelco twice for three WISHA safety violations at the Bremerton and Bainbridge Island worlcsites and assessed three monetarypenalties. The Department found that ( 1) the spacing between advanced warning signs at Potelco' s Bremerton worksite was not adequate for an urban street; ( 2) a Labor Ready flagger stood in the lane of traffic. at Potelco' s Bremerton worksite prior to road users coming to a stop, and ( 3) there were not three advanced warning signs as required at Potelco' s Bainbridge Island worksite. Potelco appealed both citations to the Board, and the industrial. appeals judge ( ALJ), who conducted the Board hearing, affirmed in part the two citations,6 ruling that, based on the 6The ALJ dismissed two traffic plan violations and the Department did not challenge their, dismissal. 5 No, 46256 -7 -II economic realities" Potelco was an employer liable for the violations at both worksites. test, Board Record (BR) at 32.. And also ruled that Potelco failed to ( 1) ensure that its flaggers did not stand in the roadway, adequate advance thereby exposing the warning signs at flaggers to the hazards its Bremerton worksite, of and ( oncoming drivers, ( 2) place 3) place adequate advance warning signs at its Bainbridge Island worksite. Potelco for petitioned review of both citations before the full. Board. The Board denied review, adopting the ALJ' s proposed decision as its final decision and order. Potelco appealed to superior court. The superior court affirmed the Board, determining that Potelco failed to show that the Board erred. in making its factual findings or legal conclusions. Potelco appealed to this court, challenging the Board' s findings of fact 2-3 and 12- 13, and conclusions of law 2, 4, 7- 8 in the Board' s Decision and Order. They read as follows in pertinent part, Findings of Fact 2. [ O] n October 11, 201.1, yin Bainbridge Island, Washington, Potelco and Labor Ready employees of [sic] were working at the intersection of Winslow Way and. Madison Ave., South. The Potelco workers were repairing a transmission pole. flagging traffic at the worksite. Potelco failed to place three advance warning signs on each of the four roads approaching the As a result, these intersection of Winslow Way and. Madison . Ave., South. employees were exposed to a hazard of being struck by passing vehicles at the Labor Ready employees were worksite. 3. [ A] substantial probability existed that the Potelco and Labor Ready employees exposed to the hazard described in ( 2) above would be injured, and that if harm, resulted, it would be serious physical harm, including the possibility,of fractures, paralysis, or death. 7 In, In re Shills Resource Training Center, No. 95 W253, 1.997 WL 593888, at * 4 ( Wash. Bd. of Indus. Ins. Appeals Aug. 5, 1997), the Board outlined a seven factor " economic realities to determine test.used The test focuses on the practical reality of who controlled contractors at a particular worksite in order to determine who is responsible for regulatory a worksite employer. compliance. M Na. 46256 -7 -II 12. [ O] n December 21, 2011, in.Bremerton, Washington, Potelco and Labor Ready employees of [sic] were working near 645 4th Street. The Potelco workers were pulling new wire, underground; from vault to vault. Labor Ready employees were flagging traffic at the worksite. A flagger stood in the roadway next to the " flagger ahead sign. As a result, these employees were exposed to a Hazard ofbeing struck by passing vehicles at the worksite.. 13. [ A] substantial probability existed,that the Potelco and Labor Ready employees exposed to the hazard described in ( 12) above would be injured, and that if harm resulted, it would be serious physical. harm, including the possibility of fractures, paralysis, or death. Conclusions of Law 2. [ O] n October. 11, 2011, Potelco committed a repeat serious violation of WAC 296- 155- 508( 8)( a) ....[$], 4. [ O] n December 21., 2011, . Potelco WAC Nos. 296- 1. 55- 508( 8)( 7. [ The.Bainbridge Island 8. [ The Bremerton c) and a serious 296- 155- 305( 9)( b) ....,.[ citation], No. citation] comititted 315249847 .... No. 315583005 violations [ sic] of 9] is affirmed as modified.... is affirmed as modified.... BR at 37- 38:, 4041. The Board' s order_ included the following unchallenged finding of fact, also 18.. [ O] n December 21, 2011, in.Bremerton, Washington, Potelco and Labor Ready employees of [sic] were working near 645 4th Street. The Potelco workers were. pulling new wire, underground, from vault to vault. Labor Ready employees were, flagging traffic at the worksite. A flagger stood in the . oadway next to the " Flagger r Ahead" sign. As a result, these employees were exposed to a hazard ofbeing struck by passing vehicles at the worksite. BR at 39. A Citation No. 315249847 cites a violation of WAC 296- 155=305( 8)( a), conclusion of law 2 incorrectly states - 508( 8)( a). 9 Citation No. 3155.83005 cites a violation of WAC 296- 155- 305( 8)( a);. conclusion.of law 4 incorrectly states - 508( 8)( a). 7 No. 4625.6 - -II. 7 ANALYSIS The Department cited Potelco twice for committing three WISHA violations; two violations at the Bremerton ' worksite and one violation at the Bainbridge Island worksite. Substantial evidence supported the Board' s challenged findings of fact, which in turn support the Board' s conclusions of law that Potelco° s flaggers committed the cited WISHA violations,, and that Potelco, using Labor Ready, flaggers, directed and controlled traffic at its Bremerton and. Bainbridge Island worksites. Accordingly, we affirm. I. STANDARD OF REVIEW The purpose of WISHA is. to assure, insofar as :may be reasonably possible, safe and healthful working conditions for person every working in the state of Washington. RM 49. 17. 01.0.. As a remedial statute, WISHA and i'ts regulations are liberallyconstrued to carry out its purpose. See .Elder Demolition, Inc. v. Dept of Labor. & Indus., 149 Wn. App. 799, 806, 207 P. 3d 453 ( 2009). The Department is charged with promulgating, regulations under, WISHA and, " when the Department charges an employer with a WISHA regulation. violation, the Department bears the initial burden of Indus., 170 Wri. proving the App. violation occurred." Pilchuck Contractors; Inc. v. Dep' t ofLabor & 51.4, 517, 286 P.3d 383 ( 2012) ( Labor & Indzcs,, 151 Wn, App. 5`89, 597, quoting Express Constr. Co. v: Dep' t of 215 P. 3d 951 ( 2009)). If the Department charges a serious" WISHA violation, as it did here, the Department must prove as part of its prima facie case: 1) the 2) the requirements of'the standard were not met;. had access t0, the violative condition; ( 4) the employer knew or, through the exercise of reasonable diligence, could have known 3) cited standard applies; ( employees were exposed to, or d. No. 46256 -7 -II of the violative condition; and ( 5) there is a substantial probability that death or serious physical harm could result from the violative condition. Pilchuck, 170 Wn. App 518 ( quoting Express Constr., 15:1 Win. App. at at 597- 98). In a WISHA appeal, we review the Board' s decision directly based on the record before the Board. Pilchuck, 170 Wn. App. at 51,6. And we review the Board' s findings of fact to determine whether they are supported by substantial evidence in the record as a whole and whether those findings support the conclusions of law. Pilchuck, 170 Wn. App. at 516. `The Board' s findings of fact are conclusive if substantial evidence supports them. Elder Demolition, 149 Wn. App. at 806. " Substantial evidence is evidence ` in sufficient quantum to persuade a fairminded person of the truth of the declared premises."'` Pilchuck, 170 Wn. App. at 517 ( quoting J.E. Dunn NW., Inc. v. Dep' t of' Labor & Indus., . 139 Wn. App. 35, 43; 1. 56 RM 250 ( 2007)). Under the substantial evidence standard of review, our review is limited to the examination of the record and we will:not reweigh the evidence.. Raum v. City of Bellevue; 171 Wn. denied, 176 Wn,2d 1024 ( 2013). App. 124, 151, 286 Pad 695 ( 2012), review Unchallenged findings of fact are verities on appeal. Nelson. v. Dep' t ofLabor & Indus., 175 Wn. App. 7.18, 723, 308 P. 3d 686 ( 2013). We give substantial weight to an agency' s interpretation within its area ofexpertise and we will.. uphold that interpretation if itis a plausible construction of the regulation and not,contrary to legislative intent, J & S Servs., Inc. v. Dep' t ofLabor & Indus., 142 Wn. App. 502, 506, 174 P. 3d 1190 ( 2007). We review issues of statutory interpretation de novo. In re the Interest of'J. R., 156 Wn. App. 9, 15, 230 P. 3d 10.87 ( 2010). We look to the statute' s plain language in order to fulfill our obligation and give effect to the legislature' s intent.. Thompson v. Wilson, 142 Wn. App. 803; 812; E No. 46256 -7 -II 175 P. M. 1149 ( 2008). reasonable 2014). interpretation, If a statute or regulation is unambiguous, and is subject to only one our inquiry ends. State v. KL.B., 180 Wn.2d 735, 739, 3.28 P. 3d '886 An ambiguity exists if there is more than one reasonable interpretation of the regulation, and " we ` may resort to statutory construction, legislative history and relevant case. law." Columbia Physical Therapy; Inc. v. Benton Franklin Orthopedic Assocs:, PLLC, 168 Wn.2d 421, 433, 228 P. 3d 1260 ( 2010) ( quoting Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 ( 2007))., Constitutional challenges are questions of law that we review de novo. LK Operating, LLC v. Collection. Group, LLC, 181 Wn.2d 48, 66, 331 P. 3d 1147 ( 2014). A party challenging,a statute has the burden ofproving it is unconstitutional beyond question. Islam v. Dept ofEarly Learning, 157 Wn._ App. 600, 608, 23'8 P. 3d 74 ( 2010). II. BAI:NBRIDGE.ISLAND WORKSITE. Potelco challenges the Board' s findings of fact 2 and 3, and the Board' s conclusions of law, 2:and 7, arguing that the Board erred in affirming the Bainbridge Island. citation because Potelco did not violate WAC 296- 155- 305( 8)( a) by failing to establish a series of three advance warning signs in each direction from the worksite. Potelco argues that it complied:with the plain language of WAC 296- 155- 305( 8)( a) because, even if it did not place all the required signs, there were already sufficient advance warding signs around the Bainbridge Island worksite and, thus, the Board en ed air affirming the Bainbridge Island citation. We hold that substantial evidence supports the Board' s findings of fact.2 and 3, and that the Board' s findings support its conclusions of law 2 and.7 that Potelco violated WAC 296- 1. 55- 305( 8)( a) when it failed to establish the required three 10 No. 46256 -7 -II advanced warning signs in each direction of the worksite, and when it allowed a flagger to work in a roadway. Potelco argues that, because workers with other flagging operations in the vicinity had erected advanced warning sighs, .Potelco did not violate the regulation when it relied on other signage workers' to satisfy WAC 296- 155- 305. In support of its arg ment, Potelco asserts that 1) the regulation .is silent as to whether separate roadway flagging operations may rely on. each other' s signage and (2) the Federal Highway Administration' s Manual.on Uniform Traffic Control Devices ( MUTCD), adopted by WAC 296- 155- 305, states that "[ t]he use of warning signs should. be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all Br. signs." of Appellant at 1`9- 20 ( quoting MUTCD § 2C. 02). Potelco argues that the MUTCD' s guidance discourages signage for a worksite when nearby worksites informed drivers of flagging operations and, thus, its interpretation. ofthe regulation should prevail.. Potelco does not dispute that the advanced sign placement requirement in WAC 296- 155 305( 8)( a) applied to its worksite; nor does Potelco dispute that it failed to place three advance warning signs 305( g)( a) advance on all roadways states that, on warning all approaching its flagging sequence on all worksite: operations; "'[ roadways The plain language of WAC 295- 1.55- e] mployers with a speed must provide [ limit below 45 mph." a] three sign The Board found that the Department' s inspector observed two streets entering the intersection had one warning sign, and two streets had no warning signs. The record also includes the Board' s finding that Potelco' s worksite supervisor observed, F] our warning signs placed north of the intersection .... South of the intersecti.on,. another worksite was established, about a block away, with three warning signs. other worksite was located east of the.intersection .... Four.warning signs were No 11 No. 46256 -7 -II placed in that direction. Multiple worksites were present west of the Potelco. had. three warning The Labor Ready flagger placed an additional three warning signs closer to the. Potelco worksite. worksite. The other worksites signs. BR at 28. The warning regulation signs in plainly each required direction from the the employer— here, Potelco— to Bainbridge Island. flagging provide the advance operation. Substantial evidence supports the Board' s findings of fact 2 and.3. Potelco also argues that.the Board erred when it concluded that Potelco' s worksite needed to be within 300 feet of the neighboring worksite to be covered by that worksite' s signs. But this mischaracterizes the Board' s decision; the Board riiled that Potelco' s first sign must be placed 100 feet from. its worksite, the second sign. 200 feet, and the: third sign. 300 feet from its worksite. The Board concluded that, even accepting Potelco' s argument that WAC 296- 155- 305 would have allowed Potelco to take advantage of the signs for the neighboring worksite, 10 the facts demonstrated that the neighboring worksite was not within 300 feet of Potelco' s worksite. Thus, Potelco could not rely on the signs posted.by the neighboring worksite. We hold that,the plain language ofWAC 296- 1.55,-35(8)( 4). required Potelco to place three warning signs in each direction from its worksite, .rather than relying on other worksites whose schedule or compliance with regulations it did not control. And because the Department' s interpretation of its own regulation " reflects a plausible construction of the language and is not 10 The Department asserts that the MUTCD does not include any language suggesting that the recommended distance between a flagger and an advanced warning sign. may be reduced to zero, and thus Potelco' s reliance on MUTCD § 6C. 04 does not support Potelco' s argument. The Department also argues that MUTCD section 6F. 31 requires Potelco to provide advanced warning symbol sign ... should be used in of a flagger with the following language, " Tine Flagger advance of any point where a flagger is stationed to control road users." 1':2 B. . o:f Resp' t at 1.8 n.6. r No. 46256 -7 -II contrary to .legislative intent," Dep' t we give of Labor & Industr., 132 Wn. deference to it. Laser Underground & Earthworks, Inc. v. App, 274, 278, 153 P. 3d 197 ( 2006) ( citing Cobra Roofing Serv., Inc. v. Dep' t.of Labor & Industr., 122 Wn. App. 402, 4091, 97 P. 3d 17 ( 2004)): We are not persuaded by Potelco' s argument that the MUTCD' s discouragement of excessive warning signage applies here; Potelco' s interpretation would require us. to disregard the plain language of WISHA' s regulations. We hold that. the Board' s findings of fact 2 and 3, that Potelco failed to place three advance warning signs 'at its Bainbridge Island worksite, support- its conclusions of law 2 and. 7' that Potelco violated WAC 296-X1. 55=305( 8)( a). III. BRE. ERTON WORKSITE M Potelco challenges the. Board' s findings of fact 1.2 and 13, and the Board' s conclustons of law 4 and 8 .in affirming the Bremerton citation. Potelco argues that the Board erred in affirming the citation, because the inspector' s opinion.that the sign spacing was not " appropriate" was not substantial evidence to support the .Board' s conclusion that Potelco violated WAC 296- 155- 305( 8)( c) by (1) failing to provide 100 feet ofspace between advance warning signs,and (2) failing to require fl.aggers to stand on. the shoulder adjacent to the road.or to stand in the closed lane before stopping road users. Br. of Appellant at 16. We conclude that substantial evidence supports the 13 No. 46256 -7 -II Board' s findings as to the Bremerton worksite, that Potelco did not challenge finding of fact 18, 1'. and that therefore the Board properly "concluded that Potelco failed to adequately space its advanced warning signs. Although Potelco argues that it complied with the plain Language of WAC 296- 1.55- 305( 8)( c) when its flaggers setup a threesign'advance'warning sequence at its Bremerton worksite, the Department responds that Potelco' s flagger was positioned immediately behind one of the advanced warning signs, thus violating the requirement in WAC 296- 155- 305( 8)( c) that the sign must provide drivers with advance notice of an. upcoming.flagger. Although Potelco concedes that one of its flaggers was " positioned ... within a few feet. of [an advanced warning] sign," Potelco contends that the regulation allows for reduced spacing between flaggers and warning signs to accommodate roadway conditions; and 'thus there was no basis. for the Department' s citation. Br. of Appellant at. 12. When an employer uses flaggers in. a public work area, the employer must comply with WAC 296- 15.5- 305. WAC 296- 45- App. 647, 654, 272 :P. M 262 ( 2012). advanced. warning signs. 11 152530( 1)( b); Potelco, Inc. v. Dep' tofLabor & lndzcs.", 166 Wn. WAC 296- 155- 305( 8)( e) sets forth the required spacing for For urban streets with a speed limit of 25 miles per hour or less, there Finding of fact 18 provides, O] n December 21, 2011, in Bremerton, Washington, Potelco and Labor Ready were working near 645 4th.Street. The Potelco workers were pulling new wire, underground, from vault to vault. Labor Ready employees were flagging traffic at the worksite. A flagger stood in the roadway,next to the " Flagger Ahead" sign. As a result, these employees were exposed "o a hazard of" t being struck by passing vehicles at the worksite.. employees .. BR at 39. 14 No. 46256 -7 -II must be least 100 feet between warning at WAC 296- 155- 305( 8)( roadway conditions;" c) provides that "[ In a table accompanying the regulation, signs. t]his spacing may be reduced in urban areas to fit but does not specify how much the spacing may be reduced. Here, Potelco does not dispute the Board' s finding that one of the worksite flaggers stood next to" the advanced warning sign. that Potelco' the Board' s s spacing between conclusion BR at 39. But Potelco argues that the inspector' s opinion, signs and flaggers was that Potelco violated WAC not " appropriate," 296- 155- 305( 8)( is insufficient to support. c), Br. of Appellant at 16. The Department argues that the requirement that the signs provide advance warning means that there must be more than " zero" spacing between the flagger and the signs. Br. of Resp' t at 18. Despite the regulation' s lack of specific guidance on how sign spacing may be adjusted, to the extent that WAC 296- 155- 305( 8)( a) is ambiguous. about the reduced. spacing allowed by road conditions, we defer to the Department' s interpretation. that the spacing .cannot be " zero." See Potelco, 1.66 Wn. App. at 654; Laser Underground, 132 Wn. App. at 278. But Potelco did not challenge finding of fact 18 that the Labor Ready flaggers stood " n.ext, to the advanced . arning sign and thus " were exposedto the hazard of being struckk by passing w vehicles at the worksite," BR at 39; we hold that this finding supports the. Board' s conclusions of law 4 and 8 that Potelco violated WISHA. And because Potelco failed to present evidence that the Depaitinent' s construction is not plausible or contrary to legislative intent, and because we give 1S No. 46256 -7 -II deference to the Department' s interpretation, we: affirm the Board' s conclusions of law 4 and 8 that Potelco violated WAC 296- 155- 305( 8)( c). 12 IV. UNCONSTITUTIONALLY VAGUE Potelco argues that the lack of specificity in WAC 2.96- 155- 305( 8)( c) regarding the required distance between flagger signs renders the regulation unconstitutionally vague, and thus the trial court erred in affinning its Bremerton citation; The Department responds that.WAC 296155- 305( 8)( c) is not unconstitutionally vague in Potelco' s situation because, although the regulation. allows Qrnployersto reduce the distance between the three advance warning signs and. the flagge. when necessary to address road conditions, the regulations do not permit flaggers to r stand directly next to the warning signs. We agree with the Department' s interpretation. Generally, 11. 8 Wn. we presume statutes are constitutional. App.. 341., 35.2, 75 P. 3d 1003. (2003). Heesan Corp. v. City of Lakewood, A party who challenges a,rule' s constitutionality for vagueness bears the burden of proving beyond a reasonable doubt that it is unconstitutionally vague. He. san Corp., 118 Wn. App. at 352. A. statute is void for vagueness if it is framed in terms e so vague that persons of common intelligence must:necessarily guess at its meaning and differ as to its application. Fcigh h v: Dep 't ofHealth, Dental Quality Assurance Comnz' n, 148 Wn. App. 836, 847, 202 P. 3d 962 ( 2009) ( citing, Haley 818 P. 2d 1062 ( 1991')). v. Med. Disciplinary Bd., 1. 17 Wn.. d 720, 739, 2 We evaluate vagueness challenges by inspecting the actual conduct of the 12 Potelco does not challenge violation 1 item 2, the second portion of the Bremerton citation, finding that Potelco violated WAC 296- 155- 305( 9)( b), which prohibits flaggers from working in the roadway with moving traffic. Because Potelco does not argue that this second portion of the citation was. improper, Potelco waives this issue on appeal and we affirm the Board' s conclusion. RAP 10.3( a)( 6)• 16 No. 46256 -7 -II party challenging the rule' s] scope."' 306 ( 2008) ( rule and. not by examining "` hypothetical situations at the periphery of the Am. Legion Post 149 v. Dep' t. of Health, 164 Wn.2d 570; 612, 192 P. 3d quoting City of'Spokane v. Douglass, 115 Wn.2d 171, 181- 82; 795 P. 2d 693 (' 1990)). Here the inspector observed that there was no distance between the third warning sign and the flagger that the sign was meant to protect. And the inspector testified that, although it is sometimes appropriate for flaggers to reduce the regulation' s 1.00 foot spacing requirement based on road conditions, here Potelco' s spacing was not appropriate because the signs did not provide an. advance warning of the flagger. Although Potelco assigns error to the Board' s findings of fact 12 and 1. 3, Potelco does not argue that the Board lacked substantial evidence to find that the flagger was standing next to the warning sign; rather; Potelco argues that the possibility of ambiguity in. interpreting the sign' s spacing requirements renders the statute unconstitutional. But we do not evaluate hypothetical applications of the regulation, n:or do we find ambiguity in the regulation. WAC 296- 155- 305( 8)( c) plainlystates that the warning sign must be in advance of the flagger, and Potelco does not dispute that it failed to provide any distance between the third warning sign and the flagger-. We holdthat the regulation. has one reasonable interpretation, and we end our inquiry by adopting the Department' s interpretation that the regulation' s plain meaning prohibited flaggers from standing next to the advance warning signs. Moreover, the Board' s unchallenged finding of fact 18, relating to the Bremerton worksite, states that " Labor Ready employees were flagging traffic at the worksite. A, flagger stood in the roadway next to the `Flagger Ahead' sign. As a result, these employees were exposed to a hazard of being struck. by passing vehicles at the worksite." verities on appeal. Nelson, 175 Wn. App. at 72.3. 17 BR at 39. Unchallenged findings of fact are No. 46256-7- 11 Because Potelco' s sign spacing at the Bremerton worksite was plainly in violation of WAC 296- 155- 308( 8)( c), and because Potelco does not challenge the Board' s finding of fact 18, we hold that, as applied to these facts, the regulation isnot unconstitutionally vague and substantial evidence supports the Board' s conclusion that Potelco violated WAC 296- 155- 308( 8)( c). V. EMPLOYER' S LIABILITY FOR FLAGGING OPERATIONS Potelco also argues that, under the " economic realities" test, it cannot be held liable for violations committed by Labor Ready' s flaggers. Br. ofAppellant at 22. The Department responds that Potelco is not excused from complying with. safety requirements on the grounds that the flaggers were temporary' employees from Labor Ready. We hold, that the Board properly, determined that, under the economic realities test, Potelco should be cited as an employer responsible for safety of the worksite: Under WISHA, employers are responsible for the safety and. health of their employees. See RCW 49. 17. 060. To advance WISHA' s safety objectives, the Department may cite multiple employers for violating work place safety standards. See Afoa v. Port ofSeattle, 176 Wn.2d 460, 471- 72, 296 P. 3d 800 ( 2013); Washington courts look to federal cases interpreting Occupational Safety and Health Act (OSHA) 13 as persuasive ,authority on how to apply the provisions of WISHA because WISHA parallels. OSHA. See Lee Cook v.. Trucking & Logging - Dept. of Labor & Indus., 109 Wn. App. 471, 47836 P. 3d 558 ( 2001). When there is a WISHA violation involving leased or temporary employees, the Board uses the " economic realities" test to determine which employer should be issued the WISHA 13 29 U.S. C. § 651. No. 46256 -7 -II citation. See In re Skills Res. Training Ctr., No. 95 W253, 1997 WL 593888, at * 4 ( Wash. Bd. of Indus. Ins. Appeals August 5, 1997).. The test requires the Board to analyze: 1) who the workers consider their employer; 2) who pays the workers' wages; 3) who has the responsibility to control. the workers; 4) whether the alleged employer has the power to control the workers; 5) whether the alleged employer has the power to fire, hire, or modify the. employment condition of the workers; 6) whether the workers' ability to increase their rather than. initiative, judgment, and foresight; and income depends on. efficiency 7) how the workers' wages are established.. Skills Res. Training 16 OSHC 1741, the worker. at Or., 1. 997 WL 593888, at * 4 ( citing Secretary of Labor v. Union Drilling, 1742 ( 1994)). The keyquestion is whether the employer has the right to control. Skills Res, Training Ctr., 1997 WL 593888, at * 4. Potelco argues that the Board improperly concluded that Potelco controlled the flaggers at the Bainbridge . sland and Bremerton worksites based only on the fact that both worksites had the I same Potelco foreman. We reject Potelco' s argument and hold that the factors weigh in favor of finding that Potelco was the employer at both sites under the " economic realities" test. As to the first factor of the test; Potelco cites the inspectors' testimony that they understood the flaggers to be Labor Ready employees. But Potelco does not cite to evidence regarding who the workers considered their employer to be at the worksite, and when an inspector asked the workers " who was in foreman. at Potelco was [ charge of in the charge]." flaggers both the flaggers and the foreman said that the Verbatim. Report of Proceedings ( VRP) ( Jan:. 22, 2013 PM) at 3. This factor weighs in favor of finding that Potelco was the employer. As to the second factor, an inspector speculated that Labor Ready paid the workers' wages, but Potelco did not present evidence to support this. 19 As to the third and fourth " control" factors, No. 46256 -7 -II both factors support a finding that Potelco is an employer here. The Board,'s unchallenged finding of fact 10 relates to the Bainbridge Island worksite, and states., " Labor Ready provided leased or temporary workers to Potelco for flagging operations at the intersection of Winslow Way and Madison Ave., South. Potelco controlled the worksite at the intersection of Winslow Way and Madison Ave., South. BR Bremerton. worksite, and 38. at states, " The Board' s unchallenged finding of fact .25 relates to the Labor Ready provided leased or temporary workers to Potelco for flagging operations near 645 4th Street. Potelco controlled the worksite near 645 4th Street." BR at 40. Because Potelco failed to assign. error, the finding that Potelco controlled the worksites is a verity on appeal. Potelco argues that, Hensley, the worksite supervisor at both worksites, testified that he did not consider himself responsible for directing the Labor Ready flaggers, and thus. Potelco did not control the Labor Ready-flaggers. But, in his testimony; Hensley agreed that he was in control of the jobsite and that there were no other contractors or employers responsible for the duties that lie was there to perform. When asked if " Potelco ha[ s] to ensure that the road is properly flagged," Hensleyreplied " Yeah. When we need flagging, we call one of the companies and have them come flag the road for us. VRP ( Jan. 22, 2013 PM) at 62. He also testified that, if he witnessed that a flagger from Labor Ready was positioned out of compliance, he would have the flagger replaced. And although he testified that Labor 13 years worksites, Ready flaggers have working for Potelco, he had seed the Jan. 22, 2013 PM) at 64- 65. during Labor. a separate supervisor at which Ready he had been " in supervisor present at Labor Ready, in his " control of .... a worksite 12 or thousands" only twice. of VRP When asked whose responsibility he thought it was to make sure 20 No. 46256 -7 -II there was adequate working there." signage at the Hensley replied, " Everybody' s. Everybody that' s worksite, VRP ( Jan. 22, 2013 PM) at 6.6. Factors three and four weigh in favor of finding that Potelco was an employer. Factor five weighs.in favor of Potelco because Potelco' s supervisor at both worksites could not directly hire or fire the flaggers; rather, he could only replace the flaggers by contacting or complaining to Labor Ready, which achieved effectively the, same result. Potelco does not raise an argument, nor is there evidence in the record for us to determine whether factors six or seven. weigh. in. Potelco' s favor.. Accordingly, we hold that, under the " economic realities" test, substantial evidence in the record supports the Board' s findings that Potelco, as an employer, controlled the workers at both worksites. And. Potelco conceded that two employers may share responsibility for the same employees. The Department may cite . multiple employers for violating workplace safety standards. See 4foa, 176 Wn.2d at 471.-72. Therefore, we hold that the facts support the Boards legal conclusion that, for both the Bremerton and Bainbridge Island citations, Potelco had control of the worksite in. a joint employer worksite. VI. STRICT LIABILITY Potelco also argues that the Board erred in affirming the citations because its ruling,would effectively hold Potelco strictly liable for the conduct of: non- employees." Br. of Appellant at 26. Potelco argues that the B'oard' s finding that :Potelco had " constructive knowledge" ofaa violation. was insufficient to rule that Potelco violated a WISHA regulation. Br. the legislature' s expansive definitions of "employer" and " employee, of Appellant at 27:. Given holding Potelco liable as a joint employer on this record supports the Legislature' s directive to establish " safe and healthful 21 No. 46256- 7- 1I working conditions." RCW 49. 17.010, . 020. The Department further argues that Potelco does not face. strict liability because "the Department must prove all the elements in a WISHA violation as to each putative employer in a WISHA 72; J. Dunn NW., 139 Wn.. App. E. at Br. of Resp' t at 35 ( citing Afoa, 176 Wn.2d at 471- case." We agree with the Department. 44- 45). To establish a WISHA safety violation, the Department must prove that cited standard applies,; (2) 1) the 3) employees were exposed to, the requirements of the standard were not met;. or had access to, the violative condition; ( 4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition; and ( 5) there is a substantial probability that death or serious physical harm could result from the violative condition. Frank Coluccio Const. Co., Inc. 2014) ( quoting Wash. Cedar & 83 P. 3d 1. 012 ( 2003)). v. Dept of'Labor & Indus., Supply Co. v. Dep' t 181 Wn. App. 25, 36- 37, 329.P. 3d 91 of Labor & Indus., 11.9 Wn. App. 906, 914, Thus, the " Department must also prove an element of `knowledge' on the part of the employer" before holding them liable. In re . ongview Fibre Co., No. 02 W0321, 20:03 L WL 23269365, at * 1 ( Wash. Bd. of Indus. Ins: Appeals Nov 5, 2003). either actual or constructive knowledge. The Department may prove Longview Fibre, 2,003 WL 23269365 at * 2, The Department met its burden of proof and we reject Potelco' s argument. CONCLUSION We hold that ( 1) the Board' s unchallenged findings of fact 1. 0 and 18 provide that Potelco' s : contractors plainly violated WAC 296- 155- 305 and ( 2) substantial evidence supports the Board' s challenged findings of fact and they support the Board' s conclusions of law that Potelco violated WAC 296- 155- 305( 9)( b) at: its Bremerton worksite and.violated WAC 296- 155- 305( 8)( a) at both Bremerton and Bainbridge Island worksites. We also hold that WAC . 296- 155- 305( 8)( c) is not unconstitutionally vague when applied to Potelco' s conduct at the Bremerton and Bainbridge 22 No. 46256 -7 -II Island worksites because Potelco was an employer in control of the-flaggers at both worksites. We affirm the Board' s decision and order. A majority of the panel having, determined that this opinion will not.be printed in the Washington Appellate Reports, but will be filed.for public record in accordance with RCW 2.06.040, it is so ordered.. SUTTON, J. We concur: 3 ) HANSOM, C. J'. JRC'.. i, J. 23

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