| IN RE: RENTON CONCRETE RECYCLERS | ) | DOCKET NO. 91 W085 |
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| CITATION & NOTICE NO. 111593133 | ) | ORDER VACATING PROPOSED DECISION AND ORDER, AND REMANDING APPEAL FOR FURTHER PROCEEDINGS |
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- APPEARANCES
- Employer, Renton Concrete Recyclers, by
- Cody, Hatch & Blanchard, Inc., P.S., per
- Peter E. Sutherland and George W. Cody, and by
- James Burnett, General Manager
- Employees of Renton Concrete Recyclers, by
- None
- Department of Labor and Industries, by
- Office of the Attorney General, per
- James M. Hawk, Assistant, and
- Nancy Bell and Shawn Ruth, Paralegals
This is an appeal filed by the employer, Renton Concrete Recyclers, on June 19, 1991 from a Corrective Notice of Redetermination dated April 26, 1991. The Corrective Notice of Redetermination affirmed Citation & Notice No. 111593133 dated May 9, 1990 and alleged one serious violation of WAC 296-61-190(11), for which a penalty of $240.00 was assessed, and 21 general violations of WAC 296-24-20509; WAC 296-155-610(2)(o); WAC 296-24-65001; WAC 296-24-78009(2)(h); WAC 296-24-68203(4)(c); WAC 296-24-68507(9)(c); WAC 296-24-68201(3); WAC 296-24-81011(1); WAC 296-155-610(2)(d); WAC 296-61-050(10); WAC 296-24-073(2); WAC 296-24-81009(2)(a); WAC 296-61-050(16); WAC 296-24-15001(1); WAC 296-24-24007; WAC 296-24-24013(1); WAC 296-61-310(16); WAC 296-62-05409(1); WAC 296-24-040; WAC 296-24-045; and WAC 296-24-810131), for which no penalties were assessed, with a total penalty of $240.00. Remanded for further proceedings. [2]
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the employer to a Proposed Decision and Order issued on June 1, 1992 in which the Notice of Appeal of Renton Concrete Recyclers filed on June 17, 1991 was dismissed because it was not timely filed pursuant to RCW 49.17.140, and therefore this Board had no jurisdiction over the appeal.
On initial consideration it appeared that the Petition for Review filed on behalf of Renton Concrete Recyclers was not timely. However, a review of our file reveals that the original attempt to communicate the Proposed Decision and Order to the employer's attorney failed, necessitating remailing of the order, and communication was not effected until July 9, 1992. The postmark on the envelope containing the Petition for Review and a declaration of filing accompanying the Petition for Review establish that filing was accomplished by mailing on July 29, 1992. The Petition for Review was filed in a timely manner as it was filed within twenty days of the date the Proposed Decision and Order was communicated to the employer through its attorney.
The employer's Petition for Review makes a simple request to which we must accede. Renton Concrete Recyclers asks us to follow the determination made by the Court of Appeals in The Erection Company v. Dep't of Labor & Indus., 65 Wn. App. 461 (May 4, 1992) which reversed our decision in In re The Erection Company (I), BIIA Dec., 88 W134 (1990). In brief, the Court of Appeals determined that RCW 49.17.140 deprives the Department of Labor and Industries of jurisdiction to issue a Corrective [3] Notice of Redetermination if the Notice is not issued within 30 working days of the Department's reassumption of jurisdiction. This interpretation of RCW 49.17.140 led the Court of Appeals to determine that the employer in that case, The Erection Company, did not have to appeal from a Corrective Notice of Redetermination issued more than 30 working days after reassumption of jurisdiction by the Department and that this Board had jurisdiction to consider the employer's timely appeal from the original Citation and Notice. As the facts presented in this appeal, at least regarding jurisdiction, are essentially identical to those presented in The Erection Company, supra, we are constrained to follow the Court of Appeals decision and to remand this appeal for further proceedings.
The record here establishes that the employer's initial appeal from the Citation and Notice issued on May 9, 1990 was filed on May 21, 1990, clearly within the 15 working day period provided by statute. The Department reassumed jurisdiction over the Citation on May 30, 1990, but did not issue its Corrective Notice of Redetermination until April 26, 1991, clearly long after 30 working days from the date on which it reassumed jurisdiction. Thus, we are now faced with a timely Notice of Appeal filed on behalf of the employer from the Citation and Notice dated May 9, 1990. Accordingly, we must remand this matter to our hearings process for proceedings to resolve the issues presented by the appeal from the Citation and Notice dated May 9, 1990.
Pursuant to WAC 263-12-145(4), we hereby set aside the Proposed Decision and Order entered on June 1, 1992 and remand this appeal to the [4] mediation and hearings process for the scheduling of further proceedings to resolve the timely Notice of Appeal filed on behalf of Renton Concrete Recyclers on May 21, 1990 from Citation and Notice No. 111593133 dated May 9, 1990. If the appeal cannot be disposed of based on an agreement of the parties pursuant to WAC 263-12-093, a further Proposed Decision and Order shall be issued after the parties to these proceedings shall have had an adequate opportunity to present such evidence as is appropriate. The Proposed Decision and Order shall be based upon the entire record, and the parties shall have the right, pursuant to RCW 51.52.104, to petition for review of such further Proposed Decision and Order.
It is so ORDERED.
Dated this 15th day of September, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member