361 P.3d 767
Wash. Ct. App.2015Background
- Potelco hired temporary flaggers from Labor Ready for two October 2011 work sites (Bremerton and Bainbridge Island); Department inspectors observed deficient traffic-control signage and a flagger standing in the roadway.
- Bainbridge: inspectors found fewer than the three advance-warning signs required in multiple approach directions; nearby contractors had posted signs, but those signs were not within the required distances for Potelco to rely on them.
- Bremerton: a flagger stood immediately next to a "Flagger Ahead" sign (no advance distance), and sign spacing for an urban 25 mph street did not meet the table minimums.
- Department issued serious WISHA citations for violations of WAC 296-155-305(8)(a) (advance warning signs), (8)(c) (spacing), and (9)(b) (flagger position); Board and ALJ affirmed; superior court affirmed; Potelco appealed.
- The Board applied the "economic realities" test and found Potelco exercised control over the Labor Ready flaggers, making Potelco a joint employer responsible for compliance.
Issues
| Issue | Potelco's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether Potelco violated WAC 296-155-305(8)(a) at Bainbridge by failing to provide a three-sign advance sequence | Potelco: could rely on existing signs posted by nearby contractors / MUTCD discourages redundant signs | Dept.: WAC requires employer to provide three-sign sequence for its own flagging operation; other sites’ signs were not within required distances | Held: Affirmed — Potelco failed to place required signs and could not rely on neighboring sites’ signage |
| Whether Bremerton sign spacing violated WAC 296-155-305(8)(c) and whether flagger placement violated (9)(b) | Potelco: spacing allowance for roadway conditions permits reduced distance; inspector opinion insufficient | Dept.: signs must provide advance notice; zero spacing invalid; inspector observations adequate | Held: Affirmed — flagger stood next to the sign (unchallenged), spacing insufficient; violations upheld |
| Whether WAC 296-155-305(8)(c) is unconstitutionally vague as applied | Potelco: table’s vague allowance for reduced spacing leaves employers guessing | Dept.: regulation reasonably read to prohibit zero spacing; apply to facts, not hypotheticals | Held: Affirmed — regulation not unconstitutionally vague as applied to Potelco’s conduct |
| Whether Potelco can be held liable under WISHA for Labor Ready flaggers (economic realities / strict liability) | Potelco: Labor Ready flaggers are not its employees; Board’s control finding insufficient — would create strict liability for non-employees | Dept.: WISHA allows citation of multiple employers; economic realities test shows Potelco controlled site and had constructive knowledge | Held: Affirmed — substantial evidence supports that Potelco controlled the work sites and is a joint employer; Department still must prove elements including knowledge (no strict liability) |
Key Cases Cited
- Elder Demolition, Inc. v. Dep’t of Labor & Indus., 149 Wn. App. 799 (Wn. App.) (WISHA remedial construction and review deference)
- Pilchuck Contractors, Inc. v. Dep’t of Labor & Indus., 170 Wn. App. 514 (Wn. App.) (elements Department must prove for serious WISHA violation)
- Express Constr. Co. v. Dep’t of Labor & Indus., 151 Wn. App. 589 (Wn. App.) (procedural burdens in WISHA enforcement)
- J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 35 (Wn. App.) (definition of substantial evidence)
- City of Bellevue v. Raum, 171 Wn. App. 124 (Wn. App.) (appellate review limits — no reweighing evidence)
- Laser Underground & Earthworks, Inc. v. Dep’t of Labor & Indus., 132 Wn. App. 274 (Wn. App.) (deference to agency construction of its regulation)
- Potelco, Inc. v. Dep’t of Labor & Indus., 166 Wn. App. 647 (Wn. App.) (prior discussion of flagging regs and agency deference)
- Afoa v. Port of Seattle, 176 Wn.2d 460 (Wash.) (multiple employers may be cited under WISHA)
- Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25 (Wn. App.) (elements and knowledge requirement for WISHA violations)
- Lee Cook Trucking & Logging v. Dep’t of Labor & Indus., 109 Wn. App. 471 (Wn. App.) (OSHA jurisprudence persuasive for WISHA issues)