Current through Register Vol. 24-06, March 15, 2024
(1)
Contents of notice of appeal in
WISHA appeals. In all appeals arising under the safety and health
provisions of the Washington Industrial Safety and Health Act, the notice of
appeal should contain where applicable:
(a)
The name, mailing address, telephone number, and email address of the appealing
party and of the party's representative, if any.
(b) A statement identifying the citation,
penalty assessment, or notice of abatement date appealed from. This requirement
may be satisfied by attaching a copy of the citation, penalty assessment, or
notice of abatement date.
(c) The
name and address of the representative of any labor union representing any
employee who was or who may be affected by the alleged safety violation(s). If
the employer has no affected employees who are members of a union, the employer
shall affirmatively certify that no union employees are affected by the
appeal.
(d) The reason why the
appealing party considers such order or decision, to be unjust or
unlawful.
(e) A statement of facts
in full detail in support of each stated reason.
(f) The specific nature and extent of the
relief sought.
(g) The place, most
convenient to the appealing party and that party's witnesses, where board
proceedings are requested to be held.
(h) A statement that the person signing the
notice of appeal has read it and that to the best of his or her knowledge the
contents are true.
(i) The
signature of the appealing party or the party's representative.
In all appeals where a stay of abatement of alleged
violation(s) pending appeal is requested, the notice of appeal must comply with
additional requirements set forth in subsection (3) of this section.
(2)
Employer duty
to notify affected employees.
(a) In
the case of any appeal by an employer concerning an alleged violation of the
safety and health provisions of the Washington Industrial Safety and Health
Act, the employer shall give notice of such appeal to its employees by either:
(i) Providing copies of the appeal and
applicable division of safety and health citation and notice or corrective
notice of redetermination to each employee member of the employer's safety
committee; or
(ii) By posting a
copy of the appeal and applicable division of safety and health citation and
notice or corrective notice of redetermination in a conspicuous place at the
work site at which the alleged violation occurred. Any posting shall remain
during the pendency of the appeal.
(b) The employer shall also provide notice
advising interested employees that an appeal has been filed with the board and
that any employee or group of employees who wish to participate in the appeal
may do so by contacting the board. Such notice shall include the address of the
board.
(c) The employer shall file
with the board a certificate of proof of compliance with this section within 14
days of issuance of the board's notice of filing of appeal. A certification
form is provided on the board's website.
(d) If notice as required by this subsection
is not possible or has not been satisfied, the employer shall notify the board
in writing of the reasons for noncompliance or impossibility. If the board, or
its designee, determines that it is not possible for the employer to provide
the required notice to employees, it will prescribe the terms and conditions of
a substitute procedure reasonably calculated to give notice to affected
employees, or may waive the affected-employee-notice requirement. If the
employer requests a stay of abatement pending appeal, and desires to assert the
claim of impossibility of notice to employees, the employer must include its
claim of impossibility, together with facts showing impossibility, in its
notice of appeal.
(3)
Request for a stay of abatement in WISHA appeals.
(a)
How made. Any request for
stay of abatement pending appeal must be included in the notice of appeal. An
employer may request a stay of abatement pending appeal by placing "STAY OF
ABATEMENT REQUESTED" prominently on the first page of the notice of appeal in
bold print. The board will issue a final decision on such requests within 45
working days of the board's notice of filing of appeal.
(b)
Union information.
(i)
Appeals from corrective notice of
redetermination. In appeals where the employer has requested a stay of
abatement of the violation(s) alleged in the corrective notice of
redetermination, the employer shall include in the notice of appeal the names
and addresses of any unions representing workers for the employer as required
by subsection (1) of this section. If the employer has no affected employees
who are members of a union, the employer shall affirmatively inform the board
that no union employees are affected by the appeal.
(ii)
Appeals from citation and
notice. Where an employer files an appeal from a citation and notice and
the department of labor and industries chooses to forward the appeal to the
board to be treated as an appeal to the board, the employer shall provide the
board with the names and addresses of any unions representing workers for the
employer as required by subsection (1) of this section. If the employer has no
affected employees who are members of a union, the employer shall inform the
board that no union employees are affected by the appeal. The employer shall
provide this information to the board within 14 days of the date of the board's
notice of filing of appeal.
(c)
Supporting and opposing
documents.(i)
Supporting
documents. In appeals where the employer has requested a stay of
abatement pursuant to RCW 49.17.140, the employer shall, within 14 calendar
days of the date of the board's notice of filing of appeal, file with the board
supporting declarations, affidavits, and documents it wishes the board to
consider in deciding the request. The employer must also simultaneously provide
supporting documents to the department and any affected employees' safety
committee or union representative. Supporting affidavits or declarations shall
be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Copies of individual
relevant supporting documents shall be specifically referred to in the
affidavit and shall be attached to the affidavit. Such supporting documents
shall not be excluded from consideration based on a hearsay objection. All such
affidavits and supporting documents shall be limited to evidence addressing:
(A) Whether there is good cause to stay the
abatement of the violation(s) set forth in the citation and notice or
corrective notice of redetermination; and
(B) Whether it is more likely than not that a
stay of the abatement of the violation(s) would result in death or serious
physical harm to a worker.
(ii)
Opposing documents. Within
28 calendar days of the date of the board's notice of filing of appeal, the
department of labor and industries and any affected employees shall file with
the board any declarations, affidavits, and documents they wish the board to
consider in deciding the request. The department must also simultaneously serve
these opposing documents on the employer and any affected employees' safety
committee or representative. The employees must also simultaneously serve the
opposing documents on the employer and the department. Supporting and opposing
affidavits and declarations shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein. Copies of individual relevant supporting documents shall be
specifically referred to in the affidavit and shall be attached to the
affidavit. Such supporting documents shall not be excluded from consideration
based on a hearsay objection. All such affidavits and supporting documents
shall be limited to evidence addressing:
(A)
Whether there is good cause to stay the abatement of the violation(s) set forth
in the citation and notice or corrective notice of redetermination;
and
(B) Whether it is more likely
than not that a stay of the abatement of the violation(s) would result in death
or serious physical harm to a worker.
(4)
Denial of request to stay
abatement. If any of the following procedural or substantive grounds are
present, the board will deny the request for a stay of abatement pending
appeal:
(a) The request for stay of abatement
is not contained in the employer's notice of appeal as required by RCW
49.17.140 (5)(a).
(b) The employer
fails to include union information as required in subsection (3)(b) of this
section.
(c) The employer fails to
timely file a certification that its employees have been notified about the
appeal and the request for stay of abatement as required in subsection (2) of
this section.
(d) The employer
fails to file supporting documents within 14 calendar days of the issuance of
the board's notice of filing of appeal as required in subsection (3)(c)(i) of
this section.
(e) The request is
moot.
(f) The only violation
alleged by the department of labor and industries is a general
violation.
(g) The employer fails
to show good cause for a stay of abatement in its supporting
documents.
(h) The preliminary
evidence shows it is more likely than not that a stay would result in death or
serious physical harm to a worker.
(5)
Expedited nature of requests to
stay abatement/requests to enlarge time. Requests to stay abatement
pending appeal must be decided in accordance with a strict statutory timeline.
Oral argument will not be permitted. The board will grant requests to enlarge
time to file documents or certifications only after receipt of a written motion
with supporting affidavit filed with the board and all other parties before the
filing deadline and only upon a showing of good cause.
Statutory Authority:
RCW
51.52.020. 11-20-003, §
263-12-059, filed 9/21/11,
effective 10/22/11; 03-02-038, §
263-12-059, filed 12/24/02,
effective 1/24/03; 01-09-032, §
263-12-059, filed 4/11/01,
effective 5/12/01.