Eller Corporation v. State Department of Labor and Industries

97 Wash.App. 1062 (1999) | Cited 0 times | Court of Appeals of Washington | October 21, 1999

Panel Seven


The Department of Labor and Industries cited Eller Corporation for a willful violation of WAC 299-155-657(1)(a) and assessed a penalty of $36,000. Eller appealed and the Board of Industrial Insurance Appeals affirmed the violation and penalty. Eller then appealed to the Spokane County Superior Court, which reversed and vacated the Board's decision and order. Contending this was error, the Department appeals. We agree and reinstate the decision of the Board.

Spokane County hired Eller to do excavation work on the North Spokane Interceptor Project. In part, the project required the installation of a manhole, referred to as "Manhole 14," into an underground sewer line. Charles Eller, Vice President of Eller Corporation, was in charge of this project. From Spokane County documents, he learned that the depth of the sewer line was 27 feet. In preparing for the excavation, Mr. Eller retained a soil engineer who told him that the soil at the excavation site was "Type C" soil, the least stable type. The engineer determined that because of its sandy nature, the sloping of the excavation would need to be 1-1/2 feet horizontal to 1 foot vertical.

Mr. Eller also decided to use a shielding system at the bottom of the excavation to protect the workers. Richard Wallander, an engineer, had designed the system which consisted of two square open-ended trench boxes measuring approximately 12 to 13 feet which would be stacked on top of each other. This system was designed for depths less than 20 feet and the slopes were to be maintained at 1-1/2 feet wide to 1 foot deep.

On May 4, 1995, Eller's employees were working on Manhole 14. Mr. Eller observed that the bottom of the excavation was wider than planned. He believed this occurred because the sand was not standing up as well as he had anticipated. The excavation had also undermined the roots of a large pine tree which threatened to fall across a nearby highway. In an effort to stabilize the tree, Mr. Eller decided his crew would work late and install the manhole base.

Mr. Eller ordered a single open-ended trench box installed at the bottom of the excavation hole. Mr. Eller, Virgil Rose, and Ryan Nesbitt went to the bottom of the excavation to install the trench box. Once the first box was installed, Mr. Eller called for the manhole base rather than installing the second trench box as planned. Thereafter, the east and west walls of the excavation caved in. Mr. Rose was completely buried for 4 to 5 minutes and was trapped for several hours. As a result, Mr. Rose suffered from memory loss and post-traumatic stress syndrome.

Mr. Eller claimed that the cave-in occurred as he and Mr. Rose were checking the plumb of the first trench box. He stated that to properly install the system, the plumb of the first box must be checked before the second box is lowered into the hole. According to Mr. Eller, he and Mr. Rose were installing the protective system when the cave-in occurred.

Department of Labor and Industries Compliance Safety and Health Officer Mark Aguiar heard of the cave-in and immediately proceeded to the site. After an investigation, he cited Eller for violating WAC 299-155-657(1)(a) because it failed to adequately protect its employees from a cave-in. He also deemed the violation willful.

Mr. Aguiar recommended a gravity score of 30, resulting in a base penalty of $6,000. Pursuant to the penalty worksheet, he decreased the penalty by $2,400 for the corporation's small size. He took the adjusted base penalty of $3,600 and multiplied it by 10 because of the willful classification, yielding a final penalty of $36,000.1

Eller appealed the citation. The Board affirmed the violation and imposed a $36,000 penalty. After its petition for review was denied, Eller appealed to the Spokane County Superior Court, which found that the trench box was not adequate because it did not keep the dirt from burying an employee, and concluded Eller did not violate WAC 296-155-664112 because the box was a professionally engineered system. It also determined that Eller's actions did not meet the legal definition of willful. The court reversed and vacated the Board's decision and order.

The Department appeals the trial court's ruling reversing and vacating the decision and order of the Board. The Board's findings and Conclusions are prima facie correct and the burden of proof is on the party attacking them. Young v. Department of Labor & Indus., 81 Wn. App. 123, 127, 913 P.2d 402, review denied, 130 Wn.2d 1009 (1996). On review, the superior court may substitute its own findings and decision for the Board's only if it finds "'from a fair preponderance of credible evidence', that the Board's findings and decision are incorrect." Ruse v. Department of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999) (quoting McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992)). Appellate review is limited to examination of the record to determine whether substantial evidence supports the findings made after the superior court's de novo review, and whether the court's Conclusions of law flow from the findings. Young, 81 Wn. App. at 128. Substantial evidence is evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Grimes v. Lakeside Indus., 78 Wn. App. 554, 560-61, 897 P.2d 431 (1995).

The superior court did not enter its own findings of fact and Conclusions of law when reversing and vacating the Board's decision. The trial court's opinion indicates that it accepted the findings as entered by the Board, but determined as a matter of law that Eller had not violated the regulations for which it was cited. Neither party has assigned error to the court's failure to enter findings. Thus, we can only review the findings and Conclusions entered by the Board. We must determine if those findings are supported by substantial evidence and if the Conclusions flow from the findings.

Based upon its findings and Conclusions, the Board determined that Eller had committed a willful violation of WAC 296-155-657(1)(a). Eller has specifically challenged findings of fact 4, 6, and 13.

Finding of fact 4 states that on May 4, the walls of the excavation sloughed during the entire day. Ryan Nesbitt was at the site all day and testified to this fact. Moreover, Mr. Eller himself indicated that the sand was not standing as well as he had anticipated. There was substantial evidence to support this finding.

Finding of fact 6 states that a registered professional engineer certified the trench box and limited its use. The engineer testified that the box was not intended to be installed deeper than 20 feet or in slopes of more than a 1-1/2 to 1 angle. Written certification for the trench boxes was also admitted. Substantial evidence supports this finding.

Finding of fact 13 states that the employer did not protect its employees from a cave-in on May 4. The evidence is undisputed that there was a cave-in on May 4 and that the protection system did not prevent it. Thus, this finding was also supported by substantial evidence.

Eller suggests that additional findings entered by the Board were not supported by substantial evidence. But review of the entire Board record indicates that each finding of fact entered was supported by substantial evidence. We must now consider the following questions: (1) Do the findings support the Conclusion that Eller violated WAC 296-155-657(1)(a), and (2) if so, was that violation willful?

The Department cited Eller for not providing an adequate protective system for its employees pursuant to WAC 296-155-657(1)(a). The relevant portions of WAC 296-155-657 provide:

(1) Protection of employees in excavations.

(a) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with subsections (2) or

(3) of this section . . . .

(2) Design of sloping and benching systems.

(3) Design of support systems, shield systems, and other protective systems. Designs of support systems, shield systems, and other protective systems shall be selected and constructed by the employer or employer's designee and shall be in accordance with the requirements of subdivision . . . (b); or, in the alternative . . . subdivision (d) . . . .

(b) Option 2-Designs using manufacturer's tabulated data.

(i) Design of support systems, shield systems, or other protective systems that are drawn from manufacturer's tabulated data shall be in accordance with all specifications, recommendations, and limitations issued or made by the manufacturer.

(d) Option 4-Design by a registered professional engineer.

(i) Support systems, shield systems, and other protective systems not utilizing Option 1, Option 2 or Option 3, above, shall be approved by a registered professional engineer.

Eller argues that it did not violate this regulation because it had Mr. Wallander, a registered professional engineer, design a stacking trench box protection system. It claims the regulation only requires the design of such a system and does not cover any use or misuse of the system. The Department disagrees, contending that WAC 296-155-657 does in fact obligate an employer to provide and use an adequate protective system.

We must accordingly interpret WAC 296-155-657(1)(a). The statutory authority for WAC 296-155-657 is RCW 49.17, the Washington Industrial Safety and Health Act (WISHA). The purpose of WISHA is "to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the State of Washington." Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 146, 750 P.2d 1257, 756 P.2d 142 (1988) (quoting RCW 49.17.010). As a remedial statute, WISHA will be liberally construed to carry out this purpose. Adkins, 110 Wn.2d at 146. Regulations promulgated pursuant to WISHA must also be construed in light of its purpose. Id. When interpreting WISHA provisions, courts will also consider the federal counterpart, the Occupational Safety and Health Act (OSHA), and federal decisions interpreting OSHA. Id. at 147.

When construing an administrative rule, it is reasonable to give terms their ordinary, common, everyday meaning. Pacific Wire Works, Inc. v. Department of Labor & Indus., 49 Wn. App. 229, 235, 742 P.2d 168 (1987). We give substantial weight to the agency's legal interpretation to the extent that it falls within the agency's expertise in a special area of the law. Superior Asphalt & Concrete Co. v. Department of Labor & Indus., 84 Wn. App. 401, 405, 929 P.2d 1120 (1996), review denied, 132 Wn.2d 1009 (1997).

There are no Washington cases and only one Board decision interpreting WAC 296-155-657(1)(a). In In re Central Concrete & Utilities, Inc., Docket No. 96 W447, 1998 WL 226212 (Washington Bd. Ind. Ins. App., Decision & Order, March 3, 1998), the Board held that the failure to have an adequate protective system in place violated WAC 296-155-657(1)(a). There, a Central Concrete employee was laying pipe in an excavated trench where there was no cave-in protective system in use. Id. at *2. The Board concluded that Central Concrete violated WAC 296-155-657(1)(a) by failing to have an adequate protective system in place. Id. at *4. We can therefore infer that both the Board and the Department interpret WAC 296-155-657(1)(a) to cover use of a protective system.

Federal decisions interpreting 29 C.F.R. 1926.652(a)(1), the federal counterpart to WAC 296-155-657(1)(a), indicate that the regulation is performance oriented and only allows employers to choose from a limited number of acceptable procedures. P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 115 F.3d 100, 109 (1st Cir. 1997); Conie Constr., Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995). For example, in Conie, the court stated that the employer may "use" any of the alternatives in the regulation. These decisions indicate 29 C.F.R. 1926.652(a)(1) regulates use.

Decisions from the Occupational Safety and Health Review Commission also support this interpretation. In Secretary of Labor v. P. Gioioso & Sons, Inc., Docket No. 95-0322, 1996 WL 304532 at *4 (Occupational Safety & Health Review Comm'n, Decision & Order, May 24, 1996), the Commission determined that whenever employees enter a trench, they must be protected from a potential cave-in. Gioioso employees were in a trench without any protective system as required by 29 C.F.R. 1926.652(a)(1). There was a trench box at the work site and the employer alleged the employees were in the trench determining if the box would fit inside. The Commission upheld a violation, stating that once the employees entered the trench, the regulation required that a protective system be in place.

In Secretary of Labor v. Abbott Contractors, Inc., Docket No. 91-3177, 1993 WL 85436 at *3 (Occupational Safety & Health Review Comm'n, Decision & Order, March 8, 1993), the Commission found that the employer had violated 29 C.F.R. 1926.652(a)(1) because there was no cave-in protection in place. The Commission further stated the employer violated the regulation because the box was not being properly used.

The Board decision, federal case law, and decisions of the Occupational Safety and Health Review Commission indicate that WAC 296-155-657(1)(a) and its federal counterpart, 29 C.F.R. 1926.652(a)(1), regulate use of protective systems. We give great deference to these interpretations. If Eller misused or failed to use a protective system at the time of the cave-in, it violated WAC 296-155-657(1)(a) and the Board's decision should be reinstated.

The findings of fact entered by the Board indicate that on May 4, 1995, Eller excavated a hole that was 33 feet deep and 55 feet wide. Virgil Rose and Charles Eller entered the excavation while protected only by a single trench box. The professional engineer that certified the trench box stated it should not be used at depths greater than 20 feet. Furthermore, a second trench box, which was required to complete the system, was not installed. These facts establish that Eller did not properly use its protective system to adequately protect its employees from a cave-in, and thereby violated WAC 296-155-657(1)(a). The decision of the Board concluding that the violation occurred should be reinstated.3

Now we must determine if Eller's violation of WAC 296-155-657(1)(a) was willful. A willful violation is "an act done with either an intentional disregard of, or plain indifference to, the Act's requirements." St. Joe Minerals Corp. v. Occupational Safety & Health Review Comm'n, 647 F.2d 840, 846 (8th Cir. 1981); see also National Steel & Shipbuilding Co. v. Occupational Safety & Health Review Comm'n, 607 F.2d 311, 314 (9th Cir. 1979); Secretary of Labor v. E.L. Davis Contracting Co., Docket No. 92-35, 1994 WL 541796 at *6 (Occupational Safety & Health Review Comm'n, Decision, September 29, 1994); In re Erection Co., Docket No. 88 W142 at 11 (Washington Bd. Ind. Ins. App., Decision & Order, November 8, 1990). Whether a violation is willful is a question of fact. Anderson Excavating & Wrecking Co. v. Secretary of Labor, 131 F.3d 1254 (8th Cir. 1997).

Several factors are considered when determining if a violation was willful. Repeat violations are one indication of willfulness. See F.X. Messina Constr. Corp. v. Occupational Safety & Health Review Comm'n, 505 F.2d 701, 702 (1st Cir. 1974). But the receipt of prior warnings or citations is not necessary to a finding of willfulness. National Steel, 607 F.2d at 317. Knowledge of the regulation and a decision not to comply are factors to consider. Id. at 316-17. Willfulness also exists if an employer does not provide the appropriate safety equipment for its employees or substitutes its own judgment as to whether safety equipment or procedures are required in specific situations. Erection Co., 88 W142 at 12-13.

Charles Eller was in charge of the job site on May 4, 1995. He had consulted a professional engineer to certify a trench box system for this job. Although the trench box was not intended for use at depths greater than 20 feet, he installed the first of a two-box, stacked system in the 33-foot excavation. Mr. Eller voluntarily and knowingly chose to install the manhole base before completing the installation of the trench box system. He was aware of the safety standards set forth in WAC 296-155-657(1)(a). These facts support a finding of willfulness.4

Finally, Eller appeals the imposition of the $36,000 penalty. RCW 49.17.180(1) states the penalty for a willful violation shall not exceed $70,000. The maximum penalty for any other type of violation is not to exceed $7,000. RCW 49.17.180(2)-(3). Given this framework, the Department has instituted a policy whereby it multiplies the base penalty by 10 for a willful violation. See In re Cam Construction, Docket No. 90 W060 at 6 (Washington Bd. Ind. Ins. App., Decision & Order, January 8, 1992).

Eller contends the Board erred by multiplying its base penalty of $3,600 by a factor of 10.5 There is no Washington case law on point, but decisions from the Board indicate that such a practice is customary. See In re Robert Colf d/b/a Colf Construction, Docket No. 96 W318, 1998 WL 902100 at *8-9 (Washington Bd. Ind. Ins. App., Decision & Order, November 23, 1998); In re Deaconess Medical Center, Docket No. 96 W177, 1998 WL 226234 at *3 (Washington Bd. Ind. Ins. App., Decision & Order, March 11, 1998). In these cases, the Board upheld a penalty for a willful violation which was calculated from a base penalty multiplied by 10 for the willful violation.

The decisions of the Board indicate that it is proper to multiply the base penalty by 10 for willful violations. The $36,000 penalty was not error.

We reverse and reinstate the decision of the Board. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Kato, J.


Schultheis, C.J.

Kurtz, J.

1. Originally, Mr. Aguiar calculated the adjusted base penalty at $4,800 and imposed a $48,000 final penalty. He later acknowledged a calculation error and corrected the penalty to $36,000.

2. Eller was not cited for violating WAC 296-155-66411. The Board's decision and order did not mention this regulation.

3. Eller claims the Department is equitably estopped from assessing a violation for improper use of a protection system. It states that in order to use the protective system in question, the first trench box must be lowered into the excavation. Workers must then go into the first box and take measurements to accurately install the second box in the stacked system. It argues that the Department had observed it using this procedure in the past and had never issued a citation or violation. It contends the Department's failure to issue such a citation was tacit approval of its use of the system. Eller thus argues the Board's finding indicating the Department had made no such representations was error. The factual basis for Eller's claim for equitable estoppel is flawed. The findings of fact, which are supported by substantial evidence, state that Eller was not installing the protective system, but rather the manhole base. Moreover, the record does not indicate the Department had viewed or approved of the procedure used by Eller. The claim of equitable estoppel must fail.

4. The Department alleges that the trial court also erred by declining to affirm the Board's determination that the violation was a serious violation of WAC 296-155-657 (1)(a). The Board's proposed decision and order did indicate that Eller's violation of WAC 296-155-657(1)(a) constituted a "serious willful violation." RCW 49.17.180 sets forth two classifications for violations, serious and willful. Eller was cited for a willful violation. A reading of the proposed decision and order indicates that the Judge used the word "serious" in its common meaning, not as an additional classification of the violation. The decision does not discuss the standard for imposing a serious violation. The Board also did not discuss the violation of WAC 296-155-657(1)(a) as being a serious one. Indeed, Eller was not cited for a serious violation. Even if this court were to find the violation was not willful, there is no basis for finding a serious violation.

5. Eller states that this court should review the imposition of the penalty under the arbitrary and capricious standard. In support of its position, Eller cites to law dealing with Washington's Administrative Procedure Act. But the Act does not apply to decisions of the Board. RCW 34.05.030(2)(a). Our review is limited to determining if the findings entered are supported by substantial evidence and if the Conclusions flow therefrom. See Young v. Department of Labor & Indus., 81 Wn. App. 123, 128, 913 P.2d 402, review denied, 130 Wn.2d 1009 (1996). As already stated, the findings were supported by substantial evidence. Thus, we must simply determine if the Conclusions of law regarding the imposition of the penalty are legally appropriate.

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