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Washington Health and Safety Standards Apply to Prison Work Places

The Washington State Supreme Court has held that the Dept. of Corrections (DOC) must comply with electrical licensing and safety laws, but not competitive bidding and prevailing wage laws, when managing prisoner labor.

The National Electrical Contractor Association (NECA) and the International Brotherhood of Electrical Workers (IBEW) filed a complaint against Washington state's DOC and Department of Labor and Industries (DLI) alleging the DOC's use of prisoner labor to perform electrical work on prison facilities violates the state's electrical licensing statute, Washington Industrial Safety and Health Act (WISHA), prevailing wage and competitive bidding statutes.

As a preliminary mater, the DLI was dismised as a defendant by the lower court, finding it was not a necessary party to the suit because the director and the DLI have discretion to determine when, who, and how to inspect use of electrical labor, and whether to issue citations.

The court dismissed with prejudice NECA/IBEW's claim that DOC violated the prevailing wage and competitive bidding laws. The court subsequently entered summary judgment in favor of the DOC, finding that NECA/IBEW did not have standing to bring claims on behalf of prisoner workers under WISHA, and that the DOC has broad statutory authority to utilize prisoner labor to perform electrical work notwithstanding statutory licensing and certification requirements.

On appeal, the supreme court reversed. The DOC had argued that the legislature gave the DOC broad discretion to use prisoner labor without regard to specific limiting laws regarding electrical licensing and certification requirements supersede the general statutes delegating authority to the DOC. The court specifically held that the DOC must comply with the electrical licensing requirements of RCW 19.28 before it can assign prisoner labor to do electrical work on prison facilities.

The ruling prohibits unlicensed Washington prisoners from "installing or maintaining electrical wires and equipment that are used for light, heat, or power and installing and maintaining remote control, signaling, power limited, or communication circuits or systems" related to prison facilities.

In regard to the safety and health issues, the DOC submitted that it only used Class III prisoners to do electrical work on prison facilities and adopted less stringent workplace safety and health standards for that class of workers. The court found, however, that the DOC has an internal policy that adopts WISHA standards, applying them to prisoner workers and DOC personnel pursuant to RCW 72.09.135. The court held that having adopted WISHA, the DOC must extend WISHA protection to all prisoner workers. See: National Elec. Contractor Ass'n v Riveland, 138 Wn.2d 9 (Wash. 1999).

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Related legal case

Nat'l Elec. Contractor Ass'n v. Riveland

DLI's enforcement powers include performing investigations, conducting inspections, and issuing citations. See generally RCW 19.28, RCW 39.12, RCW 49.17. As a practical matter, decisions associated with exercising these enforcement powers are discretionary. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding a presumption of unreviewability of decisions of agency not to undertake enforcement action); Nerbun v. State, 8 Wash.App. 370, 376, 506 P.2d 873 (1973) (Department of Labor and Industries' duty to conduct spot inspections of workplaces is not absolute).

[17] NECA/IBEW maintains that because DLI has historically approved of DOC's practice and otherwise did not enforce the statutes against DOC, mandamus lies to compel DLI enforcement.

*32 In Aripa v. Department of Soc. & Health Servs., 91 Wash.2d 135, 588 P.2d 185 (1978), this court explained the limits of a mandamus action with respect to an agency's exercise of discretion:
Mandamus lies to compel discretionary acts of public officials when they have totally failed to exercise their discretion to act, and therefore it can be said they have acted in an arbitrary and capricious manner. Once officials have exercised their discretion, mandamus does not lie to force them to act in a particular manner.
Id. at 140, 588 P.2d 185. Agency action is arbitrary and capricious if it is willful and unreasoning, and taken without consideration and in disregard of the facts and circumstances. See RCW 34.05.570(4)(c)(iii); see also Heinmiller, 127 Wash.2d at 609-10, 903 P.2d 433.

Here, there is no question that DLI has exercised its discretionary authority in deciding not to enforce the electrical licensing, WISHA, and prevailing wage laws against DOC. The record indicates that DLI's historical approval of inmates' electrical work on prison facilities, and the agency's decision not to enforce the statutes, were decisions based on the agency's determination that those statutes were inapplicable to DOC's statutory authority to utilize inmate labor. To the extent that DLI believed it could enforce electrical licensing standards over DOC, the record indicates that in addition to conducting inspections of electrical work at prison facilities, DLI has also required DOC to obtain electrical installation permits.

DLI's decision not to enforce the electrical licensing statute was not arbitrary and capricious. Since we have resolved NECA/IBEW's claims under the electrical licensing, WISHA, competitive bidding, and the prevailing wage laws, the questions posed by the request for a writ of mandamus are effectively resolved as to the future.

We hold that DOC must comply with RCW 19.28 and *33 RCW 49.17, but that DOC's statutory authority to assign inmate labor under RCW 72.01.110 and RCW 72.09.100 provides exemptions for DOC from RCW 39.04 and RCW 39.12.020.


**493 TALMADGE, J. (dissenting).

I respectfully dissent to the extent the majority concludes the Department of Corrections (Department) must comply with chapter 19.28 RCW (electricians and electrical installations) and chapter 49.17 RCW (Washington Industrial Safety and Health Act (WISHA)). The courts have no subject matter jurisdiction of the appellants' claims because there is no private right of action under those chapters. Even if there were private rights of action, I would dismiss these claims for lack of justiciability because they call for a sociopolitical decision best left to the Legislature and the Governor under our separation of powers doctrine.

A. No Private Right of Action under WISHA

The contractors and unions are asserting a third-party cause of action under WISHA on behalf of prison inmates. They allege the use of unlicensed and uncertified prison inmates to perform electrical work "poses a danger to the laborers and to the public." Clerk's Papers at 19. They further argue in advocating for the application of WISHA, "the performance of electrical work by improperly-trained, uncertified workers poses significant health and safety risks to those performing the work, those later re-doing the work and the public at large later occupying the constructed premises." Clerk's Papers at 425. Thus, it would seem the contractors, in particular, brought this action out of selfless concerns for the safety of inmates and the public. When pressed to identify their standing, however, they said:
Plaintiffs have a unique pecuniary interest in the outcome of this litigation. If forced to comply with State law, DOC will by *34 their own admission be required to bid out more electrical work at DOC facilities. Plaintiffs will clearly benefit from said work and therefore have standing to pursue this action against DOC.
Clerk's Papers at 1053. I am dubious that there is a cause of action under WISHA to protect and promote commercial competitiveness in the electrical contracting business. Nor do I believe any other private right of action exists under WISHA.

The federal courts have been unanimous in holding there is no private right of action by employees against employers for violation of the federal Occupational Health and Safety Act (OSHA). John P. Ludington, Annotation, OSHA Violation by Employer or Third Party as Providing Cause of Action for Employee, 35 A.L.R. Fed. 461 (1977). As one court explained:
The Occupational Safety and Health Act of 1970 imposes a duty on employers and provides for enforcement of that duty by criminal sanctions, civil penalties recoverable by the United States for deposit into the Treasury of the United States and, under certain circumstances, injunction of the violation of the duty by a district court acting upon application of the Secretary of Labor. See 29 U.S.C.A. § § 662, 666. Congress has set up a comprehensive system for the promulgation and enforcement of regulations and standards under OSHA. Nowhere in the language of the Act, its legislative history, or in the statutory declaration of purpose and policy in the Act itself is there the slightest implication that Congress considered OSHA creating a private right of action for violation of its terms. See 1970 U.S.CODE CONG. & ADMIN.NEWS, pp. 5177-5241; 29 U.S.C.A. § 651....
The provisions for the enforcement of OSHA and the regulations promulgated thereunder are sufficiently comprehensive to make such a private right of action unnecessary to effectuate the congressional policy underpinning the substantive provisions of the statute.
Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77, 35 A.L.R. Fed. 449 (5th Cir.1975). Accord *35Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir.1998); Donovan v. Occupational Safety & Health Review Comm'n, 713 F.2d 918, 926 (2d Cir.1983); Dravo Corp. v. Occupational Safety & Health Review Comm'n, 613 F.2d 1227, 1230 n. 2 (3d Cir.1980); Ellis v. Chase Communications, Inc., 63 F.3d 473, 477, 153 A.L.R. Fed. 693 (6th Cir.1995); Mason v. Ashland Exploration, Inc., 965 F.2d 1421, 1425 (7th Cir.1992); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir.1994).

**494 WISHA mirrors OSHA. Only under the following circumstance does an employee have a cause of action:
If the director arbitrarily or capriciously fails to invoke his restraining authority under RCW 49.17.130 or fails to seek relief under this section, any employee who may be injured by reason of such failure, or the representative of such employees, may bring an action against the director in the superior court for the county in which the danger is alleged to exist for a writ of mandamus to compel the director to seek such an order and for such further relief as may be appropriate or seek the director to exercise his restraining authority under RCW 49.17.130.
RCW 49.17.170(4). [FN1] A nearly identical provision appears in OSHA at 29 U.S.C.A. § 662(d) (1998). Thus, only if the Director of the Department of Labor and Industries arbitrarily or capriciously fails to enforce WISHA does an employee have a cause of action, and that cause of action is not against the employer, but is a writ of mandamus against the Director.

FN1. Unfortunately, the majority quotes only a selected portion of this key statute. Majority op. at 489 n. 6.

WISHA imposes duties on employers to furnish employees workplaces free of known hazards. RCW 49.17.060(1). It sets out criminal penalties for enforcement. RCW 49.17.190. It provides for imposition of civil penalties recoverable by the Department of Labor and Industries for deposit into the supplemental pension fund established by RCW 51.44.033. RCW 49.17.180(8). It provides for the issuance of injunctions and temporary restraining orders to *36 enjoin workplace violations. RCW 49.17.170. In enacting WISHA, the Legislature established a comprehensive program designed to promote workplace safety through the promulgation and enforcement of workplace regulations. RCW 49.17.040--.100. Nowhere in the language of WISHA, its legislative history, or in the statutory declaration of purpose and policy in the act itself is there the slightest hint the Legislature intended WISHA to create a private right of action for employees against employers for violation of the act, or, more remotely, a private right of action for third parties to the employment relationship, as here. Rather, the act speaks only to enforcement by the Department of Labor and Industries.

In the case at bar, the appellants have asserted, as third parties, a private right of action to enforce WISHA in the prison labor context. [FN2] While I might personally prefer a statutory right of action for employees to sue employers under WISHA, whether such suits should be allowed is a matter of public policy for the Legislature to decide. Only the Legislature has the authority to create legal rights and interests outside the realm of constitutional law. See Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn.1998). The Legislature has not provided for employee suits under WISHA, much less for third parties. The Court should hold it has no subject matter jurisdiction to consider a WISHA enforcement suit brought by a private citizen. [FN3]

FN2. The cases the majority cites at 489 n. 7 are irrelevant. Those cases stand for the proposition that an umbrella organization, such as a labor council, has standing to assert the rights of its individual members. Implicit in these decisions is the understanding that the individual members have rights to assert in the first place. Here, because employees have no private right of action against employers under WISHA, the individual contractor members of the National Electrical Contractors Association (NECA) and the individual union members also have no private rights of action under WISHA to assert third-party claims.

FN3. The majority suggests, without offering any authority or reasoning, that because one of the causes of action is a declaratory judgment, the ordinary rules of standing do not apply. Majority op. at 489. I have never heard of such a rule.

B. No Private Right of Action under Chapter 19.28 RCW

The chapter of the Revised Code of Washington dealing *37 with electricians and electrical installations appears in Title 19, Miscellaneous Business Regulations. The purpose of the chapter is to establish statutory means of regulating the business of electricians in the State of Washington. To that end, the Legislature placed supervision of electrical work **495 under the Director of the Department of Labor and Industries, RCW 19.28.070, and created a board to advise the Director on standards of electrical installation, minimum inspections procedures, and the adoption of rules and regulations pertaining to the electrical inspection division. RCW 19.28.065. The Legislature gave the authority to enforce the provisions of chapter 19.28 RCW only to the Director. RCW 19.28.070. Nowhere in the chapter has the Legislature given any other person the authority to enforce the chapter. Nor has the Legislature created a right of action for anyone to bring suit under any of the provisions of the chapter. In other business regulations, the Legislature, by contrast, has created private rights of action.

The statutory scheme of chapter 18.130 RCW, the Uniform Disciplinary Act (UDA), is instructive. The UDA applies to 13 health care professions, from dispensing opticians to dieticians and nutritionists. RCW 18.130.040(2)(a). The UDA specifically allows any person to maintain an action on behalf of the State to enjoin violations of RCW 18.130.170 (incapacity of license holder to practice) and RCW 18.130.180 (unprofessional conduct), and to enjoin a person from practicing without a required license. RCW 18.130.190(2). Thus, the UDA specifically establishes private causes of action to enforce its provisions. Numerous other business regulation statutes also provide private rights of action to citizens aggrieved by a business practice in violation of law. See, e.g., RCW 18.74.095 (physical therapists); RCW 18.83.190 (psychologists); RCW 18.165.240(2) (private investigators); RCW 18.170.250 (security guards); RCW 18.185.170(2) (bail bond agents).

In a similar vein, the Legislature has created rights of action under the Consumer Protection Act for violation of numerous business regulations. The Legislature has *38 declared violations of numerous business regulations actionable under the Consumer Protection Act, chapter 19.86 RCW. See, e.g., RCW 69.90.030 (kosher food products); RCW 19.105.500 (camping resorts); RCW 19.110.170 (Business Opportunity Fraud Act); RCW 19.130.060 (Telephone Buyers' Protection Act). The Legislature, not the judiciary, may provide for per se unfair trade practices. "A per se unfair trade practice exists when a statute which has been declared by the Legislature to constitute an unfair or deceptive act in trade or commerce has been violated." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 786, 719 P.2d 531 (1986).

Given the frequency with which the Legislature has created private rights of action for violation of various business regulations, its failure to create a private right of action under chapter 19.28 RCW can only mean the Legislature intended none. Expressio unius est exclusio alterius.

Nor are there grounds for implying a private right of action under chapter 19.28 RCW. We have adopted a three-part test for deciding the existence of implied causes of action:
Borrowing from the test used by federal courts in determining whether to imply a cause of action, we must resolve the following issues: first, whether the plaintiff is within the class for whose "especial" benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.
Bennett v. Hardy, 113 Wash.2d 912, 920-21, 784 P.2d 1258 (1990). See Cazzanigi v. General Elec. Credit Corp., 132 Wash.2d 433, 446, 938 P.2d 819 (1997) (following Bennett three-part test). Here, it is plain chapter 19.28 RCW was not enacted for the pecuniary benefit of electrical contractors and union electricians, but rather to ensure uniform standards of safety in electrical work. Moreover, nothing in the wording of the chapter supports creating a remedy for *39 electrical contractors and union electricians; the Legislature specifically lodged all enforcement authority with the Director of the Department of Labor and Industries, and specifically did not create any private causes of action as it did in numerous other business regulations. Finally, implying a cause of action might be consistent with the underlying purpose of the legislation because allowing private **496 parties to bring enforcement lawsuits might make up for the Director's failure to do so. But this would always be a justification for a private right of action. In sum, weighing the Bennett factors, one must conclude the statutory scheme does not support implying a private cause of action under chapter 19.28 RCW. [FN4]

FN4. As a final matter, it seems highly questionable chapter 19.28 RCW even applies in this case. The section the majority finds the Department in violation of, by its very terms, applies only to those engaged in the electrical business:
It is unlawful for any person, firm, partnership, corporation, or other entity to engage in [the business], conduct [the business], or carry on the business of installing or maintaining wires or equipment to convey electric current, or installing or maintaining equipment to be operated by electric current as it pertains to the electrical industry, without having an unrevoked, unsuspended, and unexpired electrical contractor license, issued by the department in accordance with this chapter.
RCW 19.28.120(1). This is a licensing statute the clear intent of which is to require the licensing of businesses involved in electrical work. The Department is not in the business of electrical work; the inmate work it does is on its own property for its own purposes, and not for the purpose of engaging in commerce in the electrical installation industry. The statute does not apply to the Department. Nor does the requirement of RCW 19.28.510(1) that those engaged in the electrical construction trade possess a current journeyman electrician certificate apply. RCW 19.28.610 exempts those doing work on their own property from the requirement to possess a certified electrician certificate.

C. This Case Is Not Justiciable

Even if there were private rights of action here, these claims are not justiciable because deciding them requires the imposition of our policy determination in a conflict more properly left to the legislative and executive branches to resolve. At issue here are three statutes with policy implications that are in opposition.

While electrical contractor licensure pursuant to chapter 19.28 RCW plays a significant role in ensuring safe installation *40 and construction of electrical wires and equipment, and WISHA serves a similar function to protect employees from workplace hazards, the Legislature has given prison industries generally, and inmate labor doing construction work on correctional facilities specifically, broad authority to deviate from chapter 19.28 RCW and WISHA. The majority's opinion, however, would effectively eliminate any use of inmate labor to perform electrical work on prison facilities. This is contrary to the position the Legislature articulated in RCW 72.09.100 that inmate labor can be assigned to the construction and renovation of prison facilities through class II and class III employment. See WAC 137-80-030.

The Legislature established a strong public policy in favor of prison industries in RCW 72.09.010 designed to maximize inmate job training, rehabilitation, and cost efficient management of prison resources. RCW 72.09.100 indicates the Department has the power to provide for a "comprehensive" inmate work program and to "remove statutory and other restrictions which have limited work programs in the past." The majority relegates RCW 72.09.100 to a nullity by applying chapter 19.28 RCW and WISHA to the use of inmate labor in the construction of prison facilities. By judicial fiat, the majority here removes the substantial discretion the Legislature conferred on the Department by enacting RCW 72.09.100 to govern the use of inmate labor.

The Legislature conditioned its broad grant of authority to the Department to use inmate labor for the construction or repair of prison facilities by establishing a process under RCW 72.01.110 for determining whether use of inmate labor on a particular prison facility would be appropriate. RCW 72.01.110 provides:
The department may ... call for bids and award contracts for the erection of new buildings, or for repairs, changes, or additions to buildings already constructed: PROVIDED, That the department may proceed with the erecting of any new building, or repairs, changes, or additions to any buildings already *41 constructed, employing thereon the labor of the inmates of the institution, when in its judgment the improvements can be made in as satisfactory **497 a manner and at a less cost to the state by so doing.
The Department must show the use of inmate labor in the erection or repair of prison facilities can be done in a satisfactory manner and in a more cost efficient fashion than by going through the traditional contracting process. The agency's authority to utilize inmate labor is not subject to any other requirements, such as obtaining technical certification for qualification of inmate labor because the Department is obliged to fulfill the legislative policy goals for prison industries articulated in RCW 72.09.010 and 72.09.100.

The Department has interpreted its prison industries statutes to allow it to use inmate labor without the necessity of compliance with various licensure statutes. The Legislature has acquiesced in such an interpretation. As the agency charged with the administration of inmate work programs, the Department's interpretation of the prison industries statutes is entitled to judicial deference. Waste Management of Seattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash.2d 621, 628, 869 P.2d 1034 (1994).

Thus, we have legitimate and diametrically conflicting legislative policies before us. The majority's determination to apply chapter 19.28 RCW and WISHA to inmates working on Department facilities potentially hobbles use of prisoner inmate labor on correctional facilities projects, despite the strong legislative policy in favor of inmate labor's being used in the construction and repair of prison facilities. At the same time, to apply the provisions of RCW 72.09.100, which speaks only in broad terms of removing unspecified statutory and other restrictions on inmate labor, to negate the licensure requirements for employees, seems far too broad an invitation to the courts selectively to apply the statutory mandates otherwise designed to protect the public and workers. In the absence of a clear policy choice from the Legislature and the Governor, the parties have asked us to resolve this public policy conflict.

*42 Resolution of the matter is within the easy purview of the Governor and the Legislature. Those are the branches of government constitutionally empowered and best able to broker the various interests at play in this case. For the Court to allow itself to be drawn into what is in essence a sociopolitical dispute is to misperceive our role in our tripartite form of government.

I would apply three principles to deciding the justiciability of cases. First, I would ask whether the litigating parties have real, nontheoretical interests in the outcome of the decision. Second, I would ask whether the judicial resolution of the issue affects a core function of a coordinate constitutional branch of government. Third, I would ask whether the judiciary can articulate coherent, manageable standards for the resolution of the controversy and provide effective relief. See Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22 SEATTLE U.L. REV. 695, 736-38 (1999).

In this case, the electrical contractors and union electricians have asserted their pecuniary interests in the outcome, so there is a real controversy. Judicial resolution of the controversy, however, implicates significant responsibilities of both the executive and legislative branches. The executive branch operates the Department, and makes policy concerning the welfare and rehabilitation of inmates. The Legislature likewise has enacted statutes mandating inmate labor, while at the same time providing for safe and uniform installation of electrical wiring and structures. But the most decisive of the factors is the final one. While we may certainly declare our policy preferences by our decision in this case, we can hardly articulate what judicial standards we employ to do so. When the next case involving competing policy objectives comes before us, will this case provide any reasoning or standards for deciding such future cases? It will not, because all the majority has done here is articulate its policy preference, rather than elaborate any judicial standards for deciding such matters. We *43 should permit the legislative and judicial **498 branches to establish policy, as our constitution dictates. [FN5]

FN5. To the extent this case is not justiciable, the appropriate action by this Court would be to dismiss the claims without prejudice, pending action by the executive and legislative branches.

DURHAM, J., and DOLLIVER, J.P.T., concur.

138 Wash.2d 9, 978 P.2d 481, 5 Wage & Hour Cas.2d (BNA) 1322