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Appeals panel hears dispute over whether flagger is ‘directly involved’ in excavation for fall‑protection rules
Summary
At oral argument in Northwest Cascade Inc. v. Department of Labor and Industries, counsel for the company argued a traffic flagger protecting an excavation crew is "directly involved" in the excavation process and therefore exempt from certain fall‑protection rules; the Department countered that flaggers only control traffic and are tangential to the excavation. The court did not issue a decision from the bench.
A judge on the panel called case no. 606925, Northwest Cascade Inc. v. Department of Labor and Industries, and heard competing interpretations of Washington’s worker‑safety rules over whether a traffic flagger must comply with fall‑protection requirements.
Aaron, counsel for Northwest Cascade, told the court the central question was "whether a flagger who is protecting the excavation crew by directing traffic ... is directly involved in the excavation process." He asked the panel to affirm the superior court’s decision that vacated fall‑protection citations, arguing the exemption list and the plain text of the regulation support treating the flagger as essential to excavation safety.
The Department of Labor and Industries, through Assistant Attorney General Justin McCannon, replied that the board and the administrative record properly treated flaggers as performing temporary traffic control and not engaging in excavation work that the exemption covers. "A Northwest Cascade employee was flagging with his back to the opening of the unprotected 17 foot deep trench," McCannon told the panel, emphasizing that the employee could have been positioned further from the trench and that the record supports the board’s finding that the flagger was not engaged in the excavation process.
Why it matters: the court’s interpretation will affect which workers must follow fall‑protection measures such as harnessing or maintaining distance from an excavation. Counsel for Northwest Cascade argued the exemption should be read to include flagging when it is essential to permit the excavation to proceed; the department urged a narrower reading that distinguishes a "signal person" directing equipment from a flagger whose only role is traffic control.
Panel questioning focused on definitions and feasibility. Judges pressed whether "excavation process" is defined in the regulation and whether necessity (the excavation could not proceed without a flagger) equates to being "directly involved." Appellate counsel cited witnesses in the administrative record — including safety‑office testimony and a company safety official, Eric Wright — who said the flagger’s primary focus was protection of the crew and assisting residents entering and exiting an apartment driveway adjacent to the worksite. The department pointed to record testimony from the department inspector that the flagger stood near an unprotected 17‑foot trench and noted limits on what a tied‑off worker could safely do in that configuration.
Both sides discussed related authorities cited at oral argument. Counsel for Northwest Cascade invoked the Washington Industrial Safety and Health Act (WISHA) and urged a liberal construction in favor of worker safety, while the company also relied on the regulation's list of exempt positions. The state cited WAC 296‑155‑305 (the regulation the parties discussed during argument) and the Manual on Uniform Traffic Control Devices (MUTCD) in arguing that temporary traffic control rules apply where traffic flow is disrupted.
No decision was issued from the bench. After closing remarks and a brief rebuttal from Northwest Cascade’s counsel, the panel adjourned the argument and moved on to the next case.
Provenance: The argument and exchanges summarized here run from the court's opening (SEG 001) through the court’s closing remarks and transition to the next case (SEG 651).
