IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DEPARTMENT OF LABOR AND INDUSTRIES, No. 87759-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
TRADESMEN INTERNATIONAL, LLC,
Appellant.
HAZELRIGG, C.J. — In July 2019, the Board of Industrial Insurance Appeals
issued a decision in an appeal from a citation that concluded staffing agency
Tradesmen International LLC was not a citable employer under the Washington
Industrial Safety and Health Act of 1973 1 for purposes of the citation and vacated
it on that basis. Subsequently, the Washington State Supreme Court issued its
opinion in a different case involving Tradesmen, Department of Labor & Industries
v. Tradesmen International, LLC, 2 that held a staffing agency can be a citable
employer subject to the act under certain circumstances. The Department of Labor
and Industries now relies on that precedent and seeks reversal of the order that
vacated the citation against Tradesmen in the case at bar. We agree, reverse,
vacate the order, and reinstate the citation.
1 Ch. 49.17 RCW. 2 198 Wn.2d 524, 497 P.3d 353 (2021). No. 87759-3-I/2
FACTS
Tradesmen International leases the services of temporary workers for other
companies, most often in the construction industry. Pacific West Construction
contracted with Tradesmen to provide workers at its jobsites in 2015. It is
undisputed that their “contract provided that Pacific West Construction is solely
responsible for directing, supervising, and controlling the Tradesmen . . .
employees, as well as their work.” The contract also imposed obligations on
Pacific West, as the client company, regarding the safety of Tradesmen workers.
In September 2017, Pacific West requested to lease Tradesmen workers
for demolition and clean-up services at “the Doan residence,” a 1939 Seattle home
that had been damaged in a fire. A subsequent inspection by the Department of
Labor and Industries (L&I) on October 13, 2017 uncovered the presence of
asbestos at the Doan residence. Pacific West had hired a laboratory in March
2017 3 to conduct a good-faith survey of the site for asbestos and subsequently
hired a certified asbestos abatement contractor in August 2017 to remove the
asbestos identified in that survey from the Doan residence but some asbestos-
containing material remained. Pacific West did not provide a copy of the good-
faith survey to Tradesmen and the leased Tradesmen workers on the Doan
residence site ultimately removed some of the remaining asbestos and asbestos-
containing material themselves.
3 The report from the good-faith survey of the Doan residence was not part of the record
before the Board of Industrial Insurance Appeals, but neither party disputes the fact or results of the inspection or that L&I had access to the report.
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On October 13, 2017, L&I Industrial Hygiene Compliance Supervisor Eva
Glosson opened an inspection at the Doan residence. At the later hearing before
an industrial appeals judge, Glosson described the course of her inspection. When
she arrived at the Doan residence jobsite, two Tradesmen workers were
performing demolition and Glosson introduced herself to them. Glosson described
her next steps as follows:
I did a walk around of the worksite. At that point in time I began to document hazards that I saw. And based off of the nature of the complaint being asbestos, my experience with asbestos, understanding that it was a home that appeared to be older, it did not appear to be new construction, that the home had had demolition activities due to a fire[,] that there was a possibility that there were renegade asbestos fibers on the worksite. And after speaking to the employees, I noticed certain building materials that, based of [sic] off my experience as a hygienist,[4] I knew were suspect materials. I began to take samples, and then I realized I was having concerns over my own exposures for asbestos fibers at the workplace. I left the worksite and I hung what’s called an order of immediate restraint, OIR, an ONIR, an order and notice of immediate restraint—it’s the same document—shutting down the worksite until I could find out more information on known asbestos hazards at the worksite.
As part of her inspection, Glosson took photos of the Doan residence and collected
samples of materials she suspected contained asbestos. Glosson also requested
and received training records and materials from Tradesmen that included the
safety checklist Tradesmen field representatives had reviewed with the workers.
4 Glosson explained that she had “been an industrial hygienist since 2006,” her education
included a “bachelor[’]s in geology and environmental science” and a “master[’]s in engineering technology with a concentration in occupational safety and health.”
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On April 12, 2018, L&I issued Tradesmen a citation for two violations: the
first under WAC 296-62-07722(1)(c), 5 classified as a serious violation, based on
Tradesmen’s purported failure to provide workers with required training regarding
the hazards created by asbestos, and the second under WAC 296-155-110(3), 6
specifically the subsection that mandates filing an accident-prevention program
that addresses asbestos hazards, deemed a general violation, based on
noncompliance by Tradesmen. L&I assessed a $7,000 penalty for the serious
violation but no monetary penalty for the general violation.
Tradesmen appealed the citation on April 17, and following a preliminary
hearing on May 17 and the issuance of a reviewing officer’s report, L&I affirmed its
initial citation in a corrective notice of redetermination. Significantly, the hearing
officer’s report indicated:
The single family home was built in 1939. Had Tradesmen asked Pacific West Construction the right questions prior to sending their employees to the home, they may have prevented their employees’ asbestos exposure while performing demolition activities. Additionally[,] the employees may have been able to identify possible asbestos containing materials (ACM) had they been [sic].
5 This provision requires, in “cases where certification requirements of chapter 296-65
WAC do not apply, all employees must be trained according to the provisions of this section regardless of their exposure levels.” WAC 296-62-07722(1)(c). 6 WAC 296-155-110(3) provides:
The following are the minimal program elements for all employers: A safety orientation program describing the employer’s safety program and including: (a) How, where, and when to report injuries, including instruction as to the location of first-aid facilities. (b) How to report unsafe conditions and practices. (c) The use and care of required personal protective equipment. (d) The proper actions to take in event of emergencies including the routes of exiting from areas during emergencies. (e) Identification of hazardous gasses, chemicals, or materials involved with the instructions on the safe use and emergency action following an accidental exposure. (f) A description of the employer’s total safety program. (g) An on-the-job review of the practices necessary to perform the initial job assignments in a safe manner.
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On June 20, Tradesmen gave notice of its intent to further appeal. On January 7,
2019, Tradesmen filed a motion for summary judgment before the industrial appeal
judge that sought vacatur of the citation in its entirety. L&I filed a response later
that month, and the motion was heard on February 14. At the hearing, Tradesmen
conceded certain facts with regard to aspects of its relationship with its workers on
the Doan residence jobsite. Specifically, counsel for Tradesmen stated,
[T]here’s no dispute that the Tradesmen temporary employees were considered to be W-2 workers, that is, Tradesmen paid the wages directly to the workers, Tradesmen was responsible for the workers’ compensation premiums, unemployment premiums, FICA taxes. And so they treated them as if, on paper, as if they were a regular employee.
The industrial appeals judge denied Tradesmen’s motion for summary judgment.
The hearing on Tradesmen’s appeal commenced on March 19. Two
Tradesmen field representatives, Robert Bond and Rodney Holloway, testified
about the assignment of the workers and their visits to the jobsite. Bond stated
that Pacific West had not informed him that there was asbestos on the site, but he
also conceded that he did not specifically inquire because it was not Tradesmen’s
practice to do so. Bond explained that Tradesmen field representatives and a
project coordinator would choose workers to assign to the jobsite based on their
skillset and past performance. Bond contacted the workers to offer them the
assignment at the Doan residence, met them there, and walked the jobsite
together to identify any hazards that might be present. Holloway testified that he
and another worker performed substantially similar steps as described by Bond.
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Bond and Holloway both stated that they reviewed a safety checklist with the
workers as a matter of practice.
The hearing continued on March 21, during which Glosson and Jon Fobes,
a project coordinator for Tradesmen, both testified. On July 17, the industrial
appeal judge entered their proposed decision and order and concluded that
Tradesmen was not a citable employer under WISHA because it did not control
the workers or the Doan residence worksite. L&I petitioned for review by the Board
of Industrial Insurance Appeals (BIIA), but the request was denied on September
12 and the order became final. 7 On September 24, L&I appealed the BIIA decision
to the King County Superior Court, and it was then stayed pending resolution of
the Washington State Supreme Court’s decision in Department of Labor &
Industries v. Tradesmen International, LLC, 198 Wn.2d 524, 497 P.3d 353 (2021).
Nearly five years later, in August 2024, L&I moved to reinstate the case and
proceed to a bench trial. The superior court granted L&I’s motion and, sitting in its
appellate capacity, heard argument on January 17, 2025 and later issued a ruling
that reversed the BIIA decision and reinstated the April 12, 2018 citation.
Tradesmen timely appealed.
ANALYSIS
I. Legal Framework for Review
As a preliminary matter, when an administrative appeal comes before this
court after the superior court’s review of a board determination, we do not review
the decision of the superior court. Lemire v. Dep’t of Ecology, 178 Wn.2d 227,
7 The BIIA also corrected a clerical error in the July 17 order.
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232, 309 P.3d 395 (2013). Instead, we review “the administrative record directly.”
Id. As such, we consider anew the question presented in L&I’s appeal to the
superior court of the BIIA determination that resulted in vacatur of the BIIA order
and reinstatement of the citation against Tradesmen. More specifically, the sole
issue before us is whether the BIIA erred when it concluded that Tradesmen was
not an employer for purposes of a citation based on a violation of WISHA
requirements regarding safety training.
L&I contends in its opening brief the BIIA erred as it “focused solely on
Tradesmen’s control of its employees at the worksite to determine whether
Tradesmen was an employer” because “our Supreme Court has held that staffing
agencies can be cited under WISHA for failing to adequately prepare employees
for their work assignments.” Tradesmen responds that “caselaw does not support
[L&I]’s assertion that Tradesmen is an ‘employer’ for the purposes of WISHA as
cited” in the instant case because Tradesmen did not control the workers or the
work environment at the Doan residence. We agree with L&I.
WISHA controls our review of the BIIA decision. See RCW 49.17.150(1).
Again, “[w]e review the [BIIA]’s decision directly, based on the record before the
Board.” Baley Constr. v. Dep’t of Lab. & Indus., 10 Wn. App. 2d 768, 782, 450
P.3d 647 (2019). “We review challenged board findings for substantial evidence.”
Dep’t of Lab. & Indus. v. Phillips 66 Co., 18 Wn. App. 2d 57, 64, 489 P.3d 1153
(2021). “The findings of the board with respect to questions of fact, if supported
by substantial evidence on the record considered as a whole, are conclusive.”
Erection Co. v. Dep’t of Lab. & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085
-7- No. 87759-3-I/8
(2011); RCW 49.17.150(1). “‘Substantial evidence’ is evidence that is sufficient to
persuade a fair-minded person of the truth of the stated premise.” McClure & Sons,
Inc. v. Dep’t of Lab. & Indus., 16 Wn. App. 2d 854, 861, 487 P.3d 186 (2021). In
addition to substantial evidence, we review the BIIA’s findings of fact to determine
whether they support its conclusions of law. Mid Mountain Contractors, Inc. v.
Dep’t of Lab. & Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006). We review the
evidence and reasonable inferences therefrom in the light most favorable to the
party who prevailed before the BIIA; here, Tradesmen. Frank Coluccio Constr. Co.
v. Dep’t of Lab. & Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014). “Unchallenged
findings of fact are verities on appeal.” Hopkins v. Dep’t of Lab. & Indus., 11 Wn.
App. 2d 349, 353, 453 P.3d 755 (2019). We “give great deference to an agency’s
interpretation of its own properly promulgated regulations, ‘absent a compelling
indication’ that the agency’s regulatory interpretation conflicts with legislative intent
or is in excess of the agency’s authority.” Silverstreak, Inc. v. Dep’t of Lab. &
Indus., 159 Wn.2d 868, 884, 154 P.3d 891 (2007) (plurality opinion) (quoting
Marquis v. City of Spokane, 130 Wn.2d 97, 111, 922 P.2d 43 (1996)). We review
the BIIA’s “conclusions of law de novo to determine whether [it] correctly applied
the law.” Pro-Active Home Builders, Inc. v. Dep’t of Lab. & Indus., 7 Wn. App. 2d
10, 16, 465 P.3d 375 (2018).
“WISHA statutes and regulations are to be interpreted liberally to achieve
their purpose of providing safe working conditions for every worker in Washington.”
Tradesmen, 198 Wn.2d at 534-35. WISHA is intended “to assure, insofar as may
reasonably be possible, safe and healthful working conditions for every [person]
-8- No. 87759-3-I/9
working in the state of Washington.” RCW 49.17.010. WISHA mandates that
employers provide employees with “a place of employment free from recognized
hazards that are causing or likely to cause serious injury or death.” RCW
49.17.060(1). Relevant here, it also defines an “[e]mployer” as
any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons.
RCW 49.17.020(4).
Our Supreme Court recently resolved the question of WISHA liability for
companies that lease temporary workers to jobsites in its 2021 decision in
Tradesmen. There, it plainly stated that “[i]n the joint employment context, both
the staffing agency and the host employer may be cited if they possess substantial
control over the workers and the work environment involved in the violations.”
Tradesmen, 198 Wn.2d at 541 (emphasis added). The court set out the analysis
for such an inquiry as follows:
To determine liability under WISHA, where the putative employer is a staffing agency, the inquiry includes whether the agency had sufficient control over the workers and work environment to abate the relevant safety hazards. In doing so, we consider the relevant safety hazard involved in the violation and determine the putative employer’s level of control over the manner and instrumentalities of the work being performed, control over the workers, control over work conditions on site, and the ability to abate the relevant hazards. This determination is made on a case-by-case basis.
Id. at 541-42. It also clarified that because “the economic realities test articulates
nonexclusive factors, knowledge of a hazard may be a relevant consideration
where it is paired with some level of control and ability to abate the relevant
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hazard.” Id. at 542. If “an employer knows or should have known of a hazard and
has some relevant control over the workers and related work conditions, liability
may be appropriate.” Id. at 543 (emphasis added). Accordingly, the relevant
inquiry is
whether the staffing agencies retained substantial control over the workers and work environment such that they could abate the relevant safety hazards. We consider factors such as the power to control the worker, the ability to modify work conditions and status, control over the work site, and the level of knowledge of the relevant safety hazard.
Id. at 543-44.
Tradesmen was a consolidated case that provided the court the opportunity
to apply its test to two different employers, Tradesmen and Laborworks, to illustrate
the appropriate case-by-case analysis. There, Tradesmen “was cited for a
temporary worker’s exposure to fall and scaffold hazards” at a host jobsite. Id. at
544. Tradesmen’s contract with the host employer and jobsite safety inspection
procedures at the time of that incident were similar to its contract with Pacific West
and the procedures undertaken at the Doan residence jobsite. See id. Crucially,
the host employer in the case before the Supreme Court had moved the employee
from the first worksite to a second location that Tradesmen had not inspected,
without notifying Tradesmen. Id. at 544-45. “As a result, Tradesmen had no ability
to identify or abate the fall and scaffolding hazards at the unapproved site. The
infrastructure-related violations were simply beyond the purview of Tradesmen’s
control.” Id. at 545. The court concluded that, on those facts, Tradesmen was “not
a liable employer for th[o]se WISHA violations.” Id.
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In contrast to the court’s conclusion regarding Tradesmen, Laborworks was
cited “for WISHA violations involving the provision of vaccinations, implementing
proper safety equipment for sharp object exposure, inadequate safety training, and
inadequate medical record keeping.” Id. (emphasis added). As to those violations,
the court noted that “Laborworks exercised substantial control over the workers
and conditions—particularly, before the workers were assigned” to the jobsite. Id.
at 548. The citations issued to Laborworks “involved responsibilities that are
generally taken before or upon commencement of the job assignment and record
keeping requirements.” Id. (emphasis added). In the earlier proceedings in that
case, the BIIA found that Laborworks was responsible for “providing initial training,”
so the court held that it was therefore liable for the WISHA violations. Id. The two
employers in Tradesmen are representative of a spectrum, not discreet categories,
and emphasize the Supreme Court’s directive to consider who qualifies as an
employer, and what corresponding liability attaches, on a “case-by-case basis” in
the context of joint employment. See id. at 542.
II. Whether Tradesmen is Employer for Purposes of April 2018 WISHA Citation
The parties disagree on the application of the Supreme Court’s Tradesmen
opinion to the present case. In the superior court, L&I expressly moved to
reinstitute the citation based on the Tradesmen holding that it contended supported
its position that Tradesmen was a citable employer with regard to the violations
alleged in this case. However, Tradesmen avers in its response brief that our
Supreme Court merely reaffirmed existing precedent to hold “control over the work
environment” remains “the key element to determine whether an employer was
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covered under” WISHA and reiterated this position at oral argument before this
court. 8 However, also at oral argument in this case, L&I disputed this interpretation
and asserted it “would undercut the Laborworks decision” made by the Supreme
Court and further contended “this case, it all turns on the cited standard, on is this
a preparatory cited standard or is this a site specific one.” 9 L&I’s position is that
the cited standard here involved preparation. 10 Toward that end, it argued that the
court’s reasoning in Tradesmen established that the control and ability to abate a
workplace hazard could support liability. Specifically, L&I explained,
the court really looks to, again, based on the facts before it, who is in the best place to abate it, and so again, this would just follow with Tradesmen’s already established training regime of what its offering, it is not site specific. 11
L&I’s characterization of the Tradesmen holding is correct.
A. Application of Controlling Legal Framework to Violations in Citation
Both parties understandably focus most of their arguments and authority on
the serious violation, based on WAC 296-62-07722(1)(c), as it carries the only
financial penalty imposed in this case and the most significant long-term
consequences for Tradesmen. In its briefing, L&I takes a broad view of the WACs
and explains the interplay between the relevant sections. It elaborated on this
point at oral argument before this court when it asserted WAC 296-62-07722(1)(c),
the code provision it claims Tradesmen violated, is a “generalized statute because
8 Wash. Ct. of Appeals oral arg., Dep’t of Lab. & Indus. v. Tradesmen Int’l, LLC, No. 87759-
3-I (Mar. 3, 2026), at 13 min., 57 sec., video recording by TVW, Washington’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2026031219/. 9 Id. at 6 min., 41 sec. 10 Id. at 6 min., 55 sec. 11 Id. at 5 min, 2 sec.
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it specifically states that that training requirement is for all individuals who are not
doing asbestos removal work.” 12 In its response brief, Tradesmen seeks to narrow
the focus and asserts that the “[r]equired contents of the two-hour asbestos
awareness training is set forth in WAC 296-62-07722(6)” and “[t]his WAC only
applies to employees who engage in housekeeping operations.” While this is an
accurate characterization of that subsection, it has no bearing on the citations
issued here. Again, we “give great deference to an agency’s interpretation of its
own properly promulgated regulations, ‘absent a compelling indication’ that the
agency’s regulatory interpretation conflicts with legislative intent or is in excess of
the agency’s authority.” Silverstreak, 159 Wn.2d at 884 (quoting Marquis, 130
Wn.2d at 111). The controlling WACs must be analyzed in this light.
WAC 296-62-07701 sets the scope and application of the WACs regarding
asbestos exposure in the workplace:
(1) WAC 296-62-07701 through 296-62-07753 applies to all occupational exposures to asbestos in all industries covered by chapter 49.17 RCW, Washington Industrial Safety and Health Act and chapter 49.26 RCW, Health and safety—Asbestos. (2) This part applies to construction work as defined in WAC 296-155-012.
(Emphasis added.) WAC 296-155-012 defines “[c]onstruction work” as, “All or any
part of excavation, construction, erection, alteration, repair, demolition, and
dismantling, of buildings and other structures and all operations in connection
therewith.” (Emphasis added.) WAC 296-62-07722(1)(c) applies to “all
employees” who will not require other more specific asbestos certifications and
mandates that they “be trained according to the provision of this section regardless
12 Id. at 2 min., 50 sec.
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of their exposure levels.” WAC 296-62-07722(5) then describes the required
content of the training program at length. Tradesmen’s broad contention that
asbestos training is required for a limited subset of workers and argument before
this court that the employees on the Doan residence jobsite were not engaged in
such work13 is belied by the plain language of WISHA.
It is undisputed that the exposed workers here were engaged in demolition
and dismantling at the Doan residence, such that they were engaged in
construction work as defined by WAC 296-155-012. This work is explicitly within
the scope of WAC 296-62-07701(2), and therefore, both WAC 296-62-07722(1)(c),
the general training requirement for non-certified workers, and -07722(5), which
describes the training program these workers are required to undergo, apply to the
case before us. In Tradesmen, our Supreme Court expressly held that training
requirements are preparatory responsibilities the staffing agency carries as an
aspect of its overarching duty to protect its workers. In upholding the citation
against Laborworks, it explained the staffing agency employer,
exercised substantial control over the workers and conditions— particularly, before the workers were assigned to the . . . work site. The citations in this case involved responsibilities that are generally taken before or upon the commencement of the job assignment and record keeping requirements. The Board found that Laborworks was responsible for administrative tasks and providing initial training. These facts support the conclusion that Laborworks was a liable employer for the WISHA violations in this case.
Tradesmen, 198 Wn.2d at 548 (emphasis added). As set out, infra, Tradesmen
had the necessary control to provide the required training prior to assignment. As
L&I persuasively argued, these specific training requirements applied to the
13 Id. at 10 min., 18 sec. to 11 min., 12 sec.
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employees on the Doan residence jobsite as construction workers. As such,
Tradesmen exercised the same degree of control over the Doan residence
employees as that identified in the Supreme Court’s analysis of the Laborworks
citation; it had “substantial control over the workers and conditions—particularly,
before the workers were assigned to the . . . work site.” Id. Tradesmen’s failure
to train the Doan residence construction workers as required by the relevant WACs
rendered it a citable employer for this specific WISHA violation.
Tradesmen secondarily contends that it was not a citable employer as to
these violations because it lacked knowledge regarding the presence of asbestos
at the Doan residence. As a preliminary matter on this point, the definitions section
of WISHA, WAC 296-62-07703, defines asbestos as including “PACM.” For
purposes of WISHA, “PACM” stands for “[p]resumed asbestos-containing
material,” the definition of which expressly includes “[t]hermal system insulation
and surfacing material found in building, vessels, and vessel sections constructed
no later than 1980.” WAC 296-62-07703. Because the Doan residence was
known to have been constructed in 1939, it was subject to the presumption
regarding asbestos-containing materials. 14 More critically, however, the Supreme
Court made clear in Tradesmen that actual knowledge is not required when it
stated “where an employer knows or should have known of a hazard and has some
14 The good faith survey conducted by Pacific West indicated the presence of vermiculite
in the attic of the Doan residence. Tradesmen project coordinator Fobes testified on direct examination that his training on the health hazards of asbestos for two of the impacted Doan residence workers included a video that explains, among other things, that “[a]sbestos is in that vermiculite.”
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relevant control over the workers and related work conditions, liability may be
appropriate.” 198 Wn.2d at 543 (emphasis added).
Crucially, Tradesmen’s violations at issue here were not the result of any
specific conditions at the Doan residence, instead both relate to the steps
Tradesmen failed to take prior to the assignment of workers and the
commencement of work at the jobsite; specifically, training and accident prevention
planning. Much like Laborworks, Tradesmen had full knowledge of its training
procedures. It possessed and retained the training records of employees, as
evinced by the testimony of Tradesmen project coordinator Fobes, who had
provided training to two of the impacted workers prior to their assignment at the
Doan residence. Tradesmen also produced the workers’ Occupational Safety and
Health Administration training cards and the related training material used by
Fobes. That training, which Fobes stated was not mandatory, was made available
before the workers were assigned to the Doan residence, a point at which
Tradesmen had exclusive control over the workers, knowledge of its own training
protocols, and the ability to require training before assignment. This evidence
collectively undermines the BIIA conclusion of law that Tradesmen was “not an
employer . . . within the meaning of the Washington Industrial Safety and Health
Act” because it establishes that Tradesmen had substantial control over workers
prior to their assignment for training purposes.
The reasoning set out regarding the serious violation of WAC 296-62-
07722(1)(c) applies equally to the second violation that arises from WAC 296-155-
110(3). That general violation was issued for Tradesmen’s noncompliance with
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the “minimal program elements for all employers” concerning its “safety orientation
program.” See WAC 296-155-110(3). L&I alleged that the form Tradesmen used
to address jobsite hazards, titled “Safety Topics Discussed,” also involved
circumstances fully within Tradesmen’s knowledge. Bond and Holloway both
explained that they shared the same routine practice: to review the form with
employees before work began on the jobsite. They testified that field supervisors
would walk around the jobsite with the workers and discuss the appropriate safety
precautions with them. The form provided a checklist of safety topics for the field
supervisor to address, but asbestos was not included in that list. Bond and
Holloway both asserted that they had followed this procedure with the impacted
workers after their assignment to the Doan residence and completed the form
before any work had begun on the jobsite. Any purported lack of knowledge by
Tradesmen of the hazards present at the Doan residence is not relevant to the
issuance of the general violation of WAC 296-155-110(3) because it was based on
the deficiency of a form Tradesmen used to discuss safety with its workers before
any work began; it was a preparatory safety measure. Again, because the WACs
the staffing agency, Tradesmen, was cited for violating solely concern its
responsibilities to the workers prior to assignment and commencement of work,
specific knowledge of the precise hazards is not a prerequisite for liability under
WISHA.
B. 2019 BIIA Findings and Conclusions
At oral argument before this court, the parties were asked about the purpose
of the discussion section of the July 2019 order by the industrial appeals judge that
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was ultimately adopted by the BIIA; specifically, whether its components
constituted findings of fact to which an appellate court can apply the substantial
evidence test. 15 L&I answered that the purpose of this section is simply to explain
the BIIA’s reasoning of its decision to the parties and is not considered by the
reviewing court on appeal. 16 Tradesmen, however, stated that the discussion
portion of the order could be considered findings of fact, that were now conclusive,
based on the application of RCW 49.17.150(1) and that “the discussion provides
the substantive evidence to support the findings of fact.” 17 To be clear, the
discussion portion of the order is neither a finding nor a conclusion and, therefore,
not substantively relevant to our de novo review of the BIIA decision before us.
See Baley Constr., 10 Wn. App. 2d at 782. Additionally, L&I’s challenge to the
BIIA order centers on a single legal conclusion: that Tradesmen was not a citable
employer on the facts relevant to the April 12, 2018 violations. In the absence of
any challenges to the findings of fact in the order, they are verities. See Hopkins,
11 Wn. App. 2d at 353.
Turning to the substance of the order, the findings of fact entered by the
industrial appeals judge and adopted by the BIIA were focused on who had control
at the Doan residence worksite. Of the nine total findings set out in the July 2019
order, findings 2 through 9 address the client services agreement between
Tradesmen and Pacific West, Pacific West’s authority to control and direct the
15 Wash. Ct. of Appeals oral arg., supra, at 1 min., 56 sec. 16 Id. at 2 min., 29 sec.
L&I also referred to this section of the order as “dicta.” While we agree with L&I that the purpose of the discussion section in a BIIA is to provide its reasoning to the parties, we disagree as to L&I’s misuse of the term “dicta,” which applies only to appellate court opinions. See Gabelein v. Diking Dist. No. 1 of Island County, 182 Wn. App. 217, 239, 328 P.3d 1008 (2014). 17 Wash. Ct. of Appeals oral arg., supra, at 12 min., 15 sec.
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workers at the Doan residence jobsite, and Tradesmen’s lack of control over the
workers once they had begun work there. From these findings, the industrial
appeals judge entered three conclusions of law which were, again, adopted by the
BIIA as final when it denied L&I’s request for further review in September 2019.
L&I only truly challenges conclusion of law 2 that determined Tradesmen was not
a citable employer under WISHA.
In reaching its legal conclusions, the BIIA stated that it applied the economic
realities test from In re Skills Resource Training Center, No. 95 W253 (Wash. Bd.
of Indus. Ins. Appeals Aug. 5, 1997). However, that standard is no longer
controlling in light of Tradesmen, which addressed this test in the specific context
of joint employment. Although control still remains crucial to the analysis, our
Supreme Court has now expressly held that the “safety hazard involved in the
violation,” must be considered in order to “determine the putative employer’s level
of control over the manners and instrumentalities of the work being performed,
control over the workers, control over work conditions on site, and the ability to
abate the relevant hazards . . . on a case-by-case basis.” Tradesmen, 198 Wn.2d
at 542. Further, it also plainly held that failure to prepare or train workers is a
potential source of WISHA liability for staffing agencies. Id. at 548. The BIIA order
before us does not comport with the law as set out in controlling Supreme Court
precedent. 18
18 Furthermore, the discussion portion of the BIIA order explicitly invokes its own prior
decision in Laborworks, the very case that was reversed by the Supreme Court as part of its Tradesmen opinion. See In re Laborworks Indus. Staffing Specialists, Inc., No. 17 W1067 (Wash. Bd. of Indus. Ins. Appeals May 29, 2018), aff’d, Dep’t of Lab. & Indus. v. Laborworks Indus. Staffing Specialists, Inc., No. 79717-4-I, (Wash. Ct. of App. Aug. 17, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/797174.pdf, rev’d, Tradesmen, 198 Wn.2d 524.
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Accordingly, we reverse, vacate the July 2019 BIIA order, and reinstate the
citation against Tradesmen for the two violations addressed herein.
WE CONCUR:
Again, while the discussion portion of the order is not substantively relevant to our review, the fact of the BIIA’s reliance on the portion of the consolidated Supreme Court case that resulted in reversal further establishes the error in its legal reasoning.
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