WISHA Litigation - Repeat Violations.
On June 1, 2006, the Washington State Supreme Court
issued a significant decision concerning WISHA’s
burden of proof to cite for a “repeated”
violation as well as an Employer’s ability to
recover attorney fees in WISHA litigation. The case
involved fall protection violations of Cobra Roofing
Services, Inc (“Cobra”). A number of construction
industry groups, including AGC and ABC, filed supplemental
briefs in the case.
The issues were: (1) whether Cobra Roofing’s fall
protection citation was properly classified as a “repeat”
violation and, therefore enhanced penalties were appropriate?
and (2) whether attorney’s fees under the Equal
Access to Justice Act (EAJA) are available in proceedings
before the Washington Board of Industrial Insurance
Appeals, Superior Courts, the Court of Appeals and Supreme
Court.
The essential facts were: In 1999, WISHA cited Cobra
for violating the fall protection regulation found at
WAC 296-155-24510. As a consequence of a February 22,
2000, inspection, Cobra was cited again for violating
the fall protection regulation found at WAC 296-155-24510.
This second violation was classified as a “repeat”
and the penalty was doubled as a consequence. At hearing,
WISHA put on no evidence and the hearing record contained
no specific details regarding the nature of the 1999
violation or the conduct giving rise to the violation.
Cobra argued that the statute required the Department
to focus on the specific conduct supporting the violation
in order to cite for a “repeat.” WISHA argued
that it only needed to prove that the violations involved
the same type of hazard, not the same underlying conduct.
The Industrial Appeals Judge agreed with Cobra and determined
there was insufficient evidence of a repeat offense
because the Department failed to present any evidence
of the conditions or conduct giving rise to the 1999
violation. Subsequently, the Board of Industrial Insurance
Appeals (Board) reversed adopting WISHA’s view.
Cobra appealed. The Superior Court reversed the Board
and further ruled that attorney fees under the EAJA
were not available for proceedings before the Board,
but were available before the Superior Court. The Superior
Court initially granted Cobra attorney fees. On reconsideration,
the Court denied attorney fees because both Cobra and
WISHA had prevailed on significant issues and WISHA’s
actions were not unjust. The Court of Appeals reversed
the Superior Court adopting WISHA’s view regarding
“repeated” violations and affirmed the Superior
Court on the attorney fee question.
In summary, on the question of “repeat violations,”
reviewing the very same evidence, statute and administrative
rules, the Industrial Appeals Judge and the Superior
Court concluded there was insufficient evidence of a
repeat violation, while the Board and Court of Appeals
concluded there was sufficient evidence of a repeat
violation.
In a 5-4 decision authored by Justice Charles Johnson,
the Washington State Supreme Court held against Cobra
on all issues. The Supreme Court majority held that
WISHA need only show that a same type of hazard is involved
to constitute a “repeat violation,” and
therefore Cobra’s fall protection violations were
repeat; and (2) EAJA attorney’s fees do not apply
to administrative proceedings before the BIIA, and EAJA
attorney’s fees do not apply to judicial review
of WISHA citations.
There were four dissenting opinions. Justice Tom Chambers
disagreed with the majority regarding the burden of
proof for a “repeat violation” but agreed
with the majority’s decision on the attorney fee
question. Justice Sanders, Justice Alexander and Justice
Johnson disagreed with the majority on both questions.
The practical impact of this decision is apparent on
several levels. WISHA’s desire to broadly cite
for “repeat” violations with enhanced penalties
has now been endorsed by the Supreme Court. Absent a
statutory change clearly specifying that “repeat”
violations must be tied by “similar circumstances/conduct,”
Washington State employers are now on notice that there
are no “nuisance” citations. Every citation
regardless of the size of the initial penalty should
be seriously reviewed for appeal. Today’s “$500
invalid fall protection violation” (if not appealed
and dismissed) will be $5000 tomorrow! In addition,
Oregon employers who are trying to read the tea leaves
regarding what to expect from the new OR-OSHA Administrator
Michael Wood, should know there is little doubt Mr.
Wood was the driving force behind WISHA’s pursuit
of this litigation in his former job with WISHA.
Links to the written opinions are below:
Jun. 01, 2006 - 76064-1 - Cobra Roofing Services, Inc.,
v. State of WA, Dept of Labor & Industries
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=760641MAJ
Jun. 01, 2006 - 76064-1 - Cobra Roofing Services, Inc.,
v. State of WA, Dept of Labor & Industries (Dissent)
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=760641DI1
Jun. 01, 2006 - 76064-1 - Cobra Roofing Services, Inc.,
v. State of WA, Dept of Labor & Industries (Dissent)
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=760641DI2
Jun. 01, 2006 - 76064-1 - Cobra Roofing Services, Inc.,
v. State of WA, Dept of Labor & Industries (Dissent)
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=760641DI3
