| IN RE: Riedel International, Inc. | ) | DOCKET NO. 93 W006 |
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| Citation and Notice No. 111399705 | ) | ORDER DECLINING TO ENTER ORDER ON AGREEMENT OF PARTIES |
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- APPEARANCES
- Employer, Riedel International, Inc., by
- Francis Bradach, Vice-President
- Employees of Riedel International, Inc., by
- Pacific NW Ironworkers, Local 29, per
- Paddy Barry
- and International Union of Operating Engineers, Local 701
- Francis Wicklander
- Department of Labor and Industries, by
- Office of the Attorney General, per
- Elliott Furst, Assistant
This is an appeal filed by the employer, Riedel International, Inc., on October 28, 1991 with the Safety Division of the Department of Labor and Industries. The Department, reassumed jurisdiction by a notice dated November 25, 1991. Thereafter, on February 4,1 993, the Department issued a Corrective Notice of Redetermination No. 111399705. On February 18, 1993, the employer appealed the Corrective Notice of Redetermination. The Department transmitted the appeal to this Board on February 25, 1993. In light of the ruling in The Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513 (1993), we have considered this appeal as taken from Citation and Notice No. 111399705 issued by the Department of Labor and Industries on October 17, 1991. The Citation and Notice alleged that the Riedel International, Inc. had committed four violations of regulations promulgated under the authority of the Washington Industrial Safety and Health Act [hereafter "WISHA"]. The Citation and Notice assessed penalties in the sum of $31,540.00 and set an abatement date of July 26, 1991 for all violations.
This matter is before the Board pursuant to the parties' submission of a written Agreement of Parties. We received the agreement on August 6, 1993. The parties have requested that we enter an Order on Agreement of Parties in accordance with the written Agreement of Parties. The Agreement of Parties has been signed by all interested parties.
An Order on Agreement of Parties is a final decision and order of the Board. When parties to an appeal seek an Order on Agreement of Parties, only the Board has final authority to enter such an order or decline to do so, as we do in this appeal. Our authority to enter final orders is imposed by the Legislature. We will enter orders based on the [2] parties' agreement, so long as we find the agreement "is in conformity with the law and the facts." RCW 51.52.095(1).(1) As a result, we have reviewed the written agreement to determine if it is in conformity with both the law and the facts presented to us.
The written stipulation proposed as the basis for this Board's Order on Agreement of Parties includes the following provision:
Item 1-1 is affirmed as a "willful" violation. However, the penalty is reduced from $30,000 to $1,460. the basis for this reduction in penalty is the Board's finding in Ledcor Industries (Docket No. 91W058) [sic], that the classification of a violation as "willful" is more important than the amount of penalty assessed.
Agreement of Parties at 1.
Although it is not clear which order in In re Ledcor Industries, Dckt. No. 91 W058 the parties intend to reference, we believe the reference is intended to identify an Order on Remand from Superior Court entered in that appeal on April 1, 1993. In that order, we declined to enter an Order on Agreement of Parties where only the Department and the employer, but not the employee representatives agreed to its entry. We further determined that the employees' objection to entry of the Order on Agreement of Parties was founded upon prima facie evidence supportive of characterizing the violations as willful and not for an improper purpose.
In analyzing the employee's objection to entry of the Order on Agreement of Parties, we gave attention to "additional circumstances surrounding the proposed settlement" as directed by the Superior Court. In re Ledcor Industries, Dckt. No. 91 W058 (April 1, 1993) at 4. In doing so, we discussed the parties' respective positions: 1) the Department asserted that the total penalty through settlement might be greater than if the matter were fully heard and 2) the employees asserted that the classification of a violation as "willful" can be an additional economic deterrent.
We have not stated, at any time, that the classification of a violation is more meaningful than a penalty assessment. We find the [3] statement to that effect in the Agreement of Parties a blatant mischaracterization of our decision. In Ledcor, our Finding of Fact 4 stated, in pertinent part:
The employees' and unions' objection to the proposed settlement is founded upon prima facie evidence supportive of the two "willful" violations as alleged by the Department in its Citation and Notice. The unions believe that, given the facts and the law, the proposed settlement does not best further the interests of employee safety in the work place in that both the characterization of a violation as "willful" as well as assigned penalties have the effect of deterring future safety violations.
Dckt. No. 91 W058 at 8. (Emphasis added).
The Agreement of Parties proposed in this appeal appears supportive of the underlying purposes of WISHA in that it is clearly designed to enhance workplace safety. For that reason, we are initially inclined to enter the Order on Agreement of Parties. We are concerned, however, by the reference to our decision in Ledcor and the apparent understanding that penalty reduction is somehow validated by retention of a more serious classification of a citation. For that reason, the agreement maybe inconsistent with the law. In light of the Legislature's directive that our Orders on Agreement of Parties be in conformity with both the law and the facts, we must decline to enter the Order on Agreement of Parties based on an agreement that appears to be founded upon a misunderstanding of the applicable law.
This Board is committed to the purposes of WISHA and is more than willing to enter agreed orders so long as they conform to the law and the facts. We recognize that the parties have attempted to resolve this appeal in a manner which best promotes workplace safety. Unfortunately, the inclusion of a clause which misstates the controlling law effectively negates the noteworthy purposes of the written agreement.
We hold that no Order on Agreement of Parties can or will be entered by this Board unless it conforms with the law and the facts. In so holding, we encourage the parties to explore all the mechanisms available for resolving their dispute. The remedies available before this Board include orders: affirming the Citation and Notice; modifying the terms vacating the Citation and Notice; and remanding the matter to the Department. If the matter is remanded to the Department, the Department then may exercise its responsibility to administer WISHA in accordance wit the legislatures directives. [4]
Accordingly, the request to enter an Order on Agreement of Parties based on the Agreement of Parties received by the Board on August 6, 1993, is denied. This matter is referred to the mediation/hearing process for the scheduling of further proceedings. WAC 263-12-093(2).
It is so ORDERED.
Dated this 14th day of September, 1993.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
ROBERT L. McCALLISTER Member
(1)This is consistent with the directive of RCW 49.17.140(3) that the Board shall "make disposition of the issues in accordance with procedures relative to contested cases appealed to the state board of industrial insurance appeals."