286 P.3d 383
Wash. Ct. App.2012Background
- WISHA governs judicial review; substantial evidence supports Board’s two serious-violation findings.
- Pilchuck Contractors performed road work; two Hsiao brothers directed traffic without sign paddles at an intersection.
- Compliance officer observed the Hsiao brothers signaling with hands, outside a closed lane, while traffic moved.
- The Department issued a citation for two serious violations of flagging regulations; Board upheld it.
- Evidence included photos (Exhibits 12, 20, 23), witness testimony, and a traffic-control plan referencing a police flagger and two flaggers.
- Court affirms; findings are supported by substantial evidence and the Department’s prima facie case for serious violations was met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports two serious violations | Pilchuck: no paddle, not flagging | Board: flagging includes directing traffic per MUTCD/WISHA | Yes, substantial evidence supports violations |
| Whether the Hsiao brothers were directing/controlling traffic under WISHA | Hsiao brothers were setting up cones, not flagging | Interpreting control to include directing traffic | Yes, they provided temporary traffic control outside a closed lane |
| Whether the Department proved the prima facie elements for a serious violation | Insufficient exposure or knowledge | Standard satisfied by observed actions and plan/intent | Yes, elements met |
Key Cases Cited
- Legacy Roofing, Inc. v. Dep’t of Labor & Indus., 129 Wn. App. 356 (2005) (authority for appellate review of agency decisions in WISHA context)
- Mid Mountain Contractors, Inc. v. Dep’t of Labor & Indus., 136 Wn. App. 1 (2006) (precedent on substantial evidence and agency findings)
- J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 35 (2007) (quoting Holland; agency standards and review)
- Express Constr. Co. v. Dep’t of Labor & Indus., 151 Wn. App. 589 (2009) (construes regulatory interpretation and evidence sufficiency)
- Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906 (2004) (review of agency findings under WISHA)