Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       47755-2-I
Title of Case:       National Electrical Contractor, Respondent
                     v.
                     International Brotherhood, Appellant
File Date:           11/19/2001


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      99-2-24782-5
Judgment or order under review
Date filed:     10/31/2000
Judge signing:  Hon. Peter Jarvis


                                     JUDGES
                                     ------
Authored by Susan R. Agid
Concurring: C. Kenneth Grosse
            Ronald E. Cox


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Mary C. Barrett
            PO Box 40110
            1125 Washington St SE
            Olympia, WA  98504-0110

            Sonja D. Fritts
            14205 SE 36th St Ste 325
            Bellevue, WA  98006

Counsel for Respondent(s)
            Judd H. Lees
            Williams Kastner & Gibbs
            PO Box 21926
            Two Union Square
            Seattle, WA  98111-3926

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NATIONAL ELECTRICAL                              )
CONTRACTORS ASSOCIATION,                         ) No. 47755-2-I
                                                 )
               Respondent,                       ) DIVISION ONE
                                                 )
v.                                               )
                                                 )
EMPLOYMENT SECURITY                              )
DEPARTMENT OF THE STATE OF                       )
WASHINGTON,                                      )
                                                 )
          and                                    )
                                                 ) PUBLISHED OPINION
INTERNATIONAL BROTHERHOOD                        )
OF ELECTRICAL WORKERS,                           ) FILED:
LOCAL 46.                                        )
                                                 )
               Appellants.                       )
                                                 )

     AGID, C.J. -- This case involves more than 20 electrical workers who
claimed and received unemployment compensation benefits from the Employment
Security Department of the State of Washington ('the Department').  All of
the claimants are members of the International Brotherhood of Electrical
Workers Local 46 ('the Union').  The former employers of the various
claimants are all members of the National Electrical Contractors
Association (NECA).  After informal Department determinations and hearings
before Administrative Law Judges (ALJs), the Commissioner of the Department
issued decisions confirming the award of benefits in each case.  NECA
petitioned for judicial review in the King County Superior Court.  The
trial court ruled in NECA's favor, remanding the cases to the Commissioner
for additional fact-finding.
     For purposes of judicial review, the parties agreed to consolidate
three separate Department determinations awarding unemployment benefits to
over 20 members of the Union.  They are In re Evarts and In re Storer,
which are exemplar cases for about 20 claims, and In re Graham.  NECA
represented the employers in the proceedings below.  We conclude that in
the Storer case, NECA submitted sufficient evidence to cause the
Commissioner to doubt the claimant's availability for work.  We therefore
affirm the trial court's order remanding Storer to the Department for
additional fact-finding.  But we conclude that in the Evarts and Graham
cases, the information NECA submitted was not sufficient to satisfy the
'cause for doubting' standard, and we reverse the trial court's order in
those two cases.

FACTS
Under Washington's unemployment compensation act, claimants must be able
and available to work in order to receive benefits.1  To be 'available' for
work, a claimant 'must be actively seeking work pursuant to customary trade
practices . . . {.}'2  Registration with and participation in the referral
procedure of a full referral union, like the Union in this case, generally
satisfies the 'actively seeking work' requirement of the statute.  Union
members in good standing who follow the Union's dispatch referral rules are
presumed to be 'available for work' in accordance with the Act.3  All of
the claimants in this case are Union members in good standing.
In each case, NECA challenged the Department's initial determination
awarding benefits to the claimants. NECA attempted to rebut the presumption
that they were available for work and provided varying degrees of evidence
showing that electricians with lower seniority were dispatched during the
same weeks when the claimants said they were available for work but were
not hired.4  NECA also presented evidence showing that during some of the
weeks when the claimants accepted benefits, electrician jobs submitted by
NECA employers to the Union went unfilled.  On behalf of the former
employers, NECA asked the Department to engage in additional fact-finding
in order to determine whether the claimants were in fact available for work
during the time they were receiving benefits.
After hearings before ALJs, the Office for Administrative Hearings denied
the employers' requests for additional fact-finding.  Under WAC 192-04-040,
a former employer must be 'entitled to notice under WAC 192-12-320' in
order to be an 'interested party' entitled to appeal the Department's
informal determination of benefits.  Washington Administrative Code (WAC)
192-12-320 provides that a former employer is an interested party entitled
to notice if the employer provides 'relevant information relating to {a
claimant's} eligibility {for benefits} for a specific week.'  The ALJs in
these cases concluded that the employers had not produced sufficient
relevant information relating to the claimants' availability for work.
Thus, because the former employers were not 'interested parties,' they were
not entitled to participate further in the administrative process.  The
Commissioner affirmed the ALJs' decisions in each case.
NECA sought judicial review of the Commissioner's decisions.  The superior
court reversed, concluding that the evidence NECA presented was sufficient
to rebut the presumption of the claimants' availability.  The superior
court remanded the case to the Department for additional fact-finding, and
this appeal followed.
DISCUSSION

     The Administrative Procedure Act (APA) governs judicial review of
Department decisions.5  We review the superior court's decision de novo.6
'The burden of demonstrating the invalidity of agency action is on the
party asserting invalidity{.}'7  NECA bears this burden here.
I. DOES NECA HAVE STANDING?
Both the Union and the Department concede that the claimants' former
employers would have standing to seek judicial review, but argue that NECA,
by itself, lacks standing because it does not meet the APA's requirement of
being 'aggrieved or adversely affected' by the agency action.8  Focusing on
NECA's role as a representative, the appellants argue that 'the entity
potentially prejudiced by the Commissioner's decision is the employer, not
its representative.'  To be 'aggrieved or adversely affected' within the
meaning of the statute, the following three conditions must be present:
(1) The agency action has prejudiced or is likely to prejudice that person;
(2) That person's asserted interests are among those that the agency was
required to consider when it engaged in the agency action challenged; and
(3) A judgment in favor of that person would substantially eliminate or
redress the prejudice to that person caused or likely to be caused by the
agency action.{9}

The first and third factors require a showing of 'injury in fact,' while
the second requires the party to establish that the 'Legislature intended
the agency to protect the party's interests when taking the action at
issue.'10  All three factors are derived from federal case law, and the
Legislature has expressly stated that ''courts should interpret provisions
of {the APA} consistently with decisions of other courts interpreting
similar provisions of . . . the federal government . . . .''11
The Washington Supreme Court recently stated that an 'interest sufficient
to confer standing may be shown in {a} personal or representative
capacity.'12  This statement reflects the federal approach our courts have
adopted to determine whether organizations and associations have standing.13
In United Automobile Workers v. Brock,14 the U.S. Supreme Court stated that
'the doctrine of associational standing recognizes that the primary reason
people join an organization is often to create an effective vehicle for
vindicating interests that they share with others.'15  Thus, '{e}ven in the
absence of injury to itself, an association may have standing solely as the
representative of its members.'16  In Hunt v. Washington State Apple
Advertising Commission, 17 the U.S. Supreme Court established a three-part
test for determining when an organization has standing to sue on behalf of
its members.
{A}n association has standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief requested
requires participation of individual members in the lawsuit.{18}

All three conditions are satisfied in this case.  First, appellants concede
that the former employers, who are all NECA members, 'would clearly have
standing . . . as the entity impacted by the incorrect payment of benefits
to its former employees.'  Second, appellants do not contest NECA's
assertion that its 'primary role is to represent its employer members in
negotiations, arbitrations and administrative proceedings.'  Because
employers are injured when unemployment compensation benefits are
improperly awarded to their former employees, preventing wrongful awards is
'germane' to NECA's purpose of representing electrical contractors in
unemployment compensation proceedings.
Finally, the claims and relief requested here do not require the individual
employers' participation.  As we recognized in Ironworkers District Council
v. University of Washington Board of Regents,19 an organization lacks
standing where it 'seeks damages and yet alleges neither monetary injury to
itself nor assignment of its members' damage claims.'20  Unlike the
association in Ironworkers, NECA requests only that the cases be remanded
to the Department for additional fact-finding.  Because this is a request
for prospective relief, not monetary damages, the individual employers need
not participate. 21
Appellants' attempts to distinguish the associational standing cases NECA
relies on is unpersuasive.  The Union argues that this case differs from
UAW because the Trade Act of 1974 'explicitly granted the UAW standing,'
but no statute grants NECA standing.  The Union is mistaken.  In UAW, the
issue was whether the UAW had standing to challenge an agency policy
directive that allegedly denied benefits to UAW members even though the
Union did not allege any injury to itself.  The issue here is identical.
While it is true that the UAW court said that Congress 'gave unions a role
in the administration of the TRA program,'22 the Union here mischaracterizes
that language.  It does not mean that the UAW decision was based on the
Trade Act's explicit grant of standing to unions.  Rather, the UAW court
discussed legislative intent solely to show that, under the second prong of
the Hunt test, obtaining unemployment benefits for its workers was
'germane' to the UAW's purpose.23
Based on the doctrine of associational standing, as articulated by the U.S.
Supreme Court and employed by Washington courts, we hold that NECA has
standing to obtain judicial review of the Commissioner's decisions.
II. ARE THE EMPLOYERS 'INTERESTED PARTIES'?
We next consider whether NECA submitted relevant information about the
claimants' availability which was sufficient to cause the Department to
reasonably doubt the claimants' availability for work.  If it did, NECA and
the former employers became 'interested parties' entitled to pursue their
challenge to the benefit rulings.  The unemployment compensation act
provides that '{t}he applicant or claimant, his or her most recent
employing unit or any interested party which the commissioner by regulation
prescribes, may file an appeal from any determination' of benefits.24  The
WAC provides that an 'employer entitled to notice under WAC 192-12-320' is
an 'interested party' entitled to appeal an informal determination of
benefits.25 The Act expressly gives the Commissioner authority to promulgate
regulations defining 'interested part{ies}' who are entitled to notice of
benefit determinations for reasons other than lack of work.26 Based on this
authority, WAC 192-12-320(5) provides that an employer is entitled to
notice 'if the employer provides relevant information relating to {the
claimant's} eligibility {for benefits} for a specific week.'  The effect of
the WAC provisions is that only an employer providing 'relevant
information' about a claimant's eligibility for a specific week can require
the Department to engage in additional fact-finding about the claimant's
availability for work.27
NECA argues that the claimants were not eligible for benefits because they
were not 'available for work' as required by the unemployment compensation
act.28  As we noted earlier, registration with and participation in the
referral procedure of a full referral union, like the Union in this case,
generally satisfies the 'actively seeking work' requirement of the statute.

The Department's 'Union Referral Program Guidelines' state that a question
about a claimant's 'availability for work' arises if an otherwise eligible
union member refuses a union dispatch.  A Department Circular published in
1994 provides that in order to meet the statute's 'availability
requirement,' a union claimant must, among other things, 'be immediately
available for work and do whatever is required by the union to be referred
to work.'  The claimant must also submit a continued claim form reporting
any instances where he or she was not available for dispatch or refused a
dispatch during any week for which benefits are claimed.
In the Evarts and Storer decisions, the Commissioner expressly referred to
the Department-issued Supplement No. 1 to UI Circular 3-94.  This document
contains Department guidelines '{t}o provide instructions for Job Service
Center staff when a claimant's availability for work is questioned for a
week(s) previously allowed.'  The guidelines state:
Before initiating a factfinding/rebuttal interview with the claimant . . .,
an inquiry from an employer must provide relevant information regarding the
claimant's availability.  Such information may include some but not
necessarily all of the following.

-  What specific week(s) in question?
-  What is the issue(s)? (for example, illness, on vacation)
-  Was a job available for the claimant during the week(s)?
-  If a union member, through what local was the job listed?
-  What was the nature of the job?
-  Were there special skills required for the job?
-  Where was the job located?
-  How long was the job to last?
-  When was the job available to the claimant?
-  If a union member, how many members were on the out of work list at the
time  the job was offered?
-  How many members were referred to the job by the union?{29}

The claimant bears the ultimate burden of demonstrating his or her
'availability' under the statute.30  However, members in good standing of a
full referral union are presumed to be 'available for work' so long as they
meet established union criteria for dispatch referral and place no
unreasonable restrictions on their availability for work.31 An employer can
overcome the presumption of 'availability' by submitting information
creating a 'cause for doubting' this availability.32  'Cause for doubting'
has been defined as more than a 'mere suspicion.'33 In In re Brotherton, the
Commissioner found the employer satisfied the 'cause for doubting standard'
by submitting evidence showing that 'the claimant ha{d} been unemployed in
the state's largest labor market area for some six months to the date of
the appeal.'34
In each of the cases consolidated here, the Commissioner determined that
NECA had not provided sufficient relevant information to cause the
Commissioner to doubt the claimants' 'availability' for work, and thus were
not 'interested parties' under the Act.  The determination whether the
information submitted by the employers meets the 'cause for doubting'
standard is a mixed question of law and fact.35  As such, 'the factual
findings of the agency are entitled to the same level of deference which
would be accorded under any other circumstance.'36  Where neither party
challenges the Commissioner's findings of fact, those findings are verities
on appeal.37  Otherwise, an agency's factual findings should be affirmed if
they are 'supported by evidence that is substantial when viewed in light of
the whole record before the court . . . {.}'38  'The process of applying the
law to the facts, however, is a question of law and is subject to de novo
review.'39
NECA argues the Department's application of the 'interested party' standard
in these cases creates an 'impossibly high threshold of 'relevance' for
NECA members to meet in order to question initial determinations of benefit
eligibility.'  Considering the limited access to relevant facts that NECA
members have, we find NECA's argument compelling.  Washington courts have
historically applied the long-recognized principle that the burden of proof
is better placed on the party having easier access to the relevant
information.40  The unemployment compensation act is consistent with this
principle in placing the ultimate burden on the claimant to demonstrate his
or her availability.
NECA members do not have access to the Union referral hall daily sign-in
sheets that would easily demonstrate whether a claimant was in fact meeting
the statute's 'actively seeking work' requirement.  And NECA members have
no way of knowing which dispatches a particular claimant refuses.  By
contrast, it is easy for a claimant to prove his or her 'availability' for
work simply by submitting evidence of his or her compliance with union
hiring hall requirements.
The WAC provision defining 'interested party' requires only that the
employer submit 'relevant' information regarding 'eligibility for a
specific week.'41  It does not expressly require employers to come up with
specifics about particular dispatches allegedly refused by a claimant.  The
Department's application of the 'interested party' standard in the Storer
case essentially required the employers to produce specific evidence which
they had no way of obtaining.  Therefore, we affirm the trial court's
conclusion in Storer that the employers presented evidence sufficient to
cause the Commissioner to doubt the claimants' availability.  However, we
reverse the trial court's decisions in Evarts and Graham because in those
cases, the evidence NECA submitted did not satisfy the 'cause for doubting'
standard.  We discuss each case separately below.
In re Evarts
     In challenging the Department's informal determination of benefits,
NECA sent a letter to the Department which stated:  'We know work was
available since other union members and traveling electricians obtained
employment during that period.'  The letter specified the weeks in
question, but did not mention any instance where union members with lower
seniority than Evarts were dispatched during the time Evarts was collecting
benefits.  Nor did it mention any evidence indicating that the Union had
been unable to fill electrician requests submitted by NECA members while
Evarts was collecting benefits.
At the hearing, NECA asserted that Book 2 electricians were dispatched
during the time Evarts, a Book 1 electrician, was collecting benefits.
NECA argued that since Book 1 electricians have seniority over Book 2
electricians, 'Book 1's have priority over any job.  Book 2's may only be
dispatched again if Book 1's are not available or reject work.'  But there
is no documentary evidence in the record before this court showing that
Book 2 electricians were in fact dispatched during the relevant weeks.  We
agree with the Commissioner that mere suspicion is insufficient to
establish interested party status.  Because NECA's initial challenge to the
Department's informal benefit determinations in this case lacked
specificity, we affirm the Commissioner's determination that the employers
'failed to provide relevant information to the department sufficient to
create 'interested party' status pursuant to WAC 192-12-320(5) and WAC 192-
04-040.'
In re Storer
     Unlike Evarts, in this case NECA's initial letter to the Department
contained evidence showing that Book 2 electricians were dispatched during
the time Storer was collecting benefits.  The Commissioner noted that 'Book
1 electricians have the option to be dispatched before any Book 2
electrician can be dispatched {and} that Book 2 electricians have been
dispatched every week in 1999.'  NECA also stated that during some of the
time Storer was collecting benefits, 'Local 46 {was} not able to fill all
the electrician requests from the union employers.'
     We conclude that this information was sufficient to cause the
Commissioner to doubt Storer's availability for work.  The Department and
the Union correctly point out that there may be a variety of factors, such
as location or special qualifications, that make a particular job
unsuitable for a claimant.  It is also true that NECA was unable to show
that Storer ever refused a suitable dispatch to work with a specific
employer.  However, given its lack of access to Union hiring hall records,
it would be impossible for NECA to satisfy the Commissioner's requirement
that it submit proof showing a 'claimant refused a dispatch to work with a
specific employer where he or she was qualified to do the work and it was
otherwise suitable.'  And, as we noted above, NECA does not have access to
Union records that would establish whether or not Storer was complying with
the Union's dispatch referral rules.
We hold that in applying the 'interested party' standard, the Commissioner
erred in concluding that the information NECA submitted in its initial
letter to the Department about dispatch of Book 2 electricians and unfilled
electrician requests was not 'relevant' to the claimants' eligibility for
benefits.  That information was sufficient to require additional fact-
finding, imposing the minimal burden on the Department of verifying that
the claimants in Storer were in fact available for work.
In re Graham
     Daniel Graham lives in Bremerton and reports to the Union office there
for dispatch.  In this case, NECA challenged the Department's informal
determination of benefits, alleging that during the contested weeks,
'journeyman wireman positions went unfilled in IBEW Local 46.'  At the ALJ
hearing, NECA presented evidence consisting of 'Unfilled Calls forms' and a
printout from the 'Unfilled Jobs database,' showing that many jobs
submitted to the Union during this period went unfilled.  NECA did not
contest the Commissioner's finding that Graham 'customarily reports to {the
Union office} at least three times a week while awaiting dispatch.'
At the hearing, the ALJ focused on the issue of when a job's location makes
it unsuitable for a particular claimant.  It is uncontested that although
Graham has worked in King County in the past, 'he seeks work primarily in
Kitsap County and secondarily in downtown Seattle, within walking distance
of the ferry dock.'  Although Graham testified that he has, on occasion,
accepted jobs in King County outside Seattle if he was able to carpool with
another worker, NECA did not contest the ALJ's determination that a
'claimant need not be available for work throughout the union's
jurisdiction.'  NECA offered no evidence showing that Union members living
on the Kitsap Peninsula customarily accept dispatches to work in King
County, outside of downtown Seattle.  Therefore, the Commissioner correctly
affirmed the ALJ's conclusion that NECA failed to 'create more than a mere
suspicion that {Graham} failed to meet statutory requirements.'
     In order to become an 'interested party,' NECA must present evidence
in its initial letter that provides a basis for the Department to
reasonably doubt the claimant's availability for work.  Where the claimant
is a Book 1 electrician, evidence that Book 2 electricians were dispatched
and that electrician jobs submitted to the Union went unfilled while the
claimant was collecting benefits satisfies the 'cause for doubting'
standard.  Therefore, we affirm the trial court's decision remanding the
Storer case to the Department for additional fact-finding.  But, we reverse
the trial court's decisions in Evarts
and Graham because the evidence NECA submitted in its initial presentations
was not sufficient to rebut the presumption of availability.

WE CONCUR:

1 RCW 50.20.010(3).
2 Id.
3 In re Malone, Digest of Comm'rs Decisions (Employment Sec. Dep't) Dec.2d
248, at 351 (1976).
4 All of the claimants in these cases are 'Book 1' electricians who, under
the Union's dispatch referral procedures, have priority over 'Book 2'
electricians in bidding on and accepting dispatch referrals.

5 See RCW 34.05.570.
6 Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
7 RCW 34.05.570.
8 RCW 34.05.530.
9 Id.
10 St. Joseph Hosp. & Health Care Ctr. v. Dep't of Health, 125 Wn.2d 733,
739-40, 887 P.2d 891 (1995).
11 Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training
Council, 129 Wn.2d 787, 794, 920 P.2d 581 (1996) (quoting RCW 34.05.001),
cert. denied, 520 U.S. 1210 (1997).
12 To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 415, 27 P.3d 1149 (2001)
(citing Vovos v. Grant, 87 Wn.2d 697, 700, 555 P.2d 1343 (1976)).
13 See Ironworkers Dist. Council v. Univ. of Wash. Bd. of Regents, 93 Wn.
App. 735, 741 n.14, 970 P.2d 351 (1999) (citing Save a Valuable Env't
(SAVE) v. City of Bothell, 89 Wn.2d 862, 868, 576 P.2d 401 (1978)).
14 477 U.S. 274, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986).
15 Id. at 290; see also SAVE, 89 Wn.2d at 867 ('We agree that a nonprofit
corporation or association which shows that one or more of its members are
specifically injured by a government action may represent those members in
proceedings for judicial review. . . . This rule is based on practical
considerations. . . .  An association . . . of persons with a common
interest can then be the simplest vehicle for undertaking the task, and we
see no reason to bar injured persons from this method of seeking a remedy.'
(Citations omitted)).
16 Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 45 L. Ed. 2d 343
(1975).
17 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).
18 Id. at 343.  This court used the Hunt analysis in Ironworkers, 93 Wn.
App. at 740-41.
19 93 Wn. App. 735.
20 Id. at 741.
21See Warth, 422 U.S. at 515 ('{W}hether an association has standing to
invoke the court's remedial powers on behalf of its members depends in
substantial measure on the nature of the relief sought.  If in a proper
case the association seeks a declaration, injunction, or some other form of
prospective relief, it can reasonably be supposed that the remedy, if
granted, will inure to the benefit of those members of the association
actually injured.  Indeed, in all cases in which we have expressly
recognized standing in associations to represent their members, the relief
sought has been of this kind.').
22 UAW, 477 U.S. at 286.
23 Appellants' attempt to distinguish Trades Council, 129 Wn.2d 787, is also
in error.  Although the appellants there were trade associations, it was
unnecessary for the Trades Council court to address the issue of
associational standing.  Unlike the appellants in this case, the
respondents there did not draw a distinction between the standing of a
member of the association and the standing of the association itself.
24 RCW 50.32.020 (emphasis added).
25 WAC 192-04-040.
26 RCW 50.20.180.
27 We reject NECA's argument that 'imposing an 'interested party' threshold
preventing employer challenges is not 'consistent with the Commissioner's
statutory authority' and constitutes an error of law.  The statutory
provisions cited above clearly authorize the Commissioner to define which
employers are 'interested parties' for the purposes of both benefit appeals
and notice of benefit determinations.
28 RCW 50.20.010(3).
29 We reject NECA's argument that the Supplement is invalid because it 'had
not been passed pursuant to the APA Rule-making requirements.'  Since the
Supplement does not 'establish{}, alter{}, or revoke{} any qualification or
requirement relating to the enjoyment of benefits or privileges conferred
by law,' it is not a 'rule' within the meaning of the APA - RCW
34.05.010(16)(c).  Therefore the Department did not have to comply with APA
rulemaking procedures in adopting the Supplement.
30 See Townsend v. Employment Sec. Dep't, 54 Wn.2d 532, 534, 341 P.2d 877
(1959).
31 In re Malone, at 351.
32 Id.
33 In re Brotherton, Digest of Comm'rs Decisions (Employment Sec. Dep't)
Dec.2d 504, at 942 (1979).
34 Id.
35 See Tapper, 122 Wn.2d at 402 (A mixed question of law and fact 'requires
the application of legal precepts . . . to factual circumstances.').
36 Id. at 403.
37 Forsman v. Employment Sec. Dep't, 59 Wn. App. 76, 79, 795 P.2d 1184
(1990), review denied, 116 P.2d 1005 (1991).
38 RCW 34.05.570(3)(e).
39 Tapper, 122 Wn.2d at 403.
40 See, e.g., Jolliffe v. N. Pac. R.R. Co., 52 Wash. 433, 436, 100 P. 977
(1909).
41 WAC 192-12-320(5).