| IN RE: AMERICAN NEON SIGNS | ) | DOCKET NO. 94 W346 |
| ) | ||
| CITATION & NOTICE NO. 115516593 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Employer, American Neon Signs, by
- Thompson, Krilich, La Porte, Tucci & West, P.S., per
- Joseph G. Tucci, Jr.
- Employees of American Neon,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Elliott S. Furst, Assistant
This is an appeal filed by the employer, American Neon Signs, on February 4, 1994, from a nunc pro tunc order of the Department of Labor and Industries dated December 10, 1993. The nunc pro tunc order vacated Corrective Notice of Redetermination 115516593 which alleged three violations of the Washington Industrial Safety and Health Act pertaining to worker safety and assessed a total penalty in the amount of $6,000.00. DISMISSED.
PROCEDURAL MATTERS
Pursuant to RCW 49.17.140(3), 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 December 6, 1994, in which the employer's appeal to the Department order of December 10, 1993, was dismissed. In granting the employer's Motion for Summary Judgment, our industrial appeals judge dismissed the appeal after determining that the December 10, 1993 nunc pro tunc order issued by the Department was a nullity and that the Department was without statutory authority to issue such. [2]
DECISION
The issue presented by this appeal is whether the Department of Labor and Industries had statutory authority to issue its nunc pro tunc order of December 10, 1993, wherein it attempted to set aside Corrective Notice of Redetermination 115516593. To fully understand the issue, some background is needed.
On June 18, 1993, Donovan Fait, an employee of American Neon Signs, was electrocuted while in the course of his employment. After investigating the incident, the Department issued Citation and Notice 115516593, alleging that American Neon Signs had violated four safety standards relating to worker safety. The citation and notice assessed penalties totaling $7,800.00. Following an appeal by the employer and reassumption by the Department, the Department ultimately issued amended Corrective Notice of Redetermination 115516593, on October 1, 1993, wherein it alleged three safety standard violations and assessed total penalties of $6,000.00. Significantly, there was no timely appeal taken to Corrective Notice of Redetermination 115516593. Equally important, on October 28, 1993, American Neon Signs paid the $6000.00 penalty.
Thereafter, the Department of Labor and Industries reopened its investigation of the matter under Safety Report 111318747. Based on its further investigation, the Department appears to have been persuaded that it was unduly lenient with American Neon Signs. Thus, on December 10, 1993, it issued the nunc pro tunc order under consideration here in an effort to set aside Amended Corrective Notice of Redetermination 115516593. Believing that the corrective notice was effectively set aside, the Department then issued Citation and Notice 111318747, on [3] December 15, 1993, wherein it alleged that the employer had committed various safety violations bearing penalties of $67,500.00.
In the present matter, the Board does not reach the question of whether the Department had authority to issue the Citation and Notice dated December 15, 1993, that matter being considered under a companion appeal, Docket 94 W135. Here, we limit our consideration to the Department's nunc pro tunc order of December 10, 1993, and conclude, as did our industrial appeals judge, that the Department was without authority to set aside the Amended Corrective Notice of Redetermination dated October 1, 1993, inasmuch as that order had become final and binding.
In matters involving the Washington Industrial Safety and Health Act, our state's statutory scheme allows an employer to appeal within fifteen working days of receipt of a citation and notice. Absent an appeal, the citation becomes final. RCW 49.17.140(1). If the employer files a timely appeal and the Department chooses to reassume jurisdiction, the Department must issue a corrective notice of redetermination within 30 working days. Thereafter, once a corrective notice is issued by the Department and received by the employer, it too will become final subject to the employer filing a timely appeal with the Board of Industrial Insurance Appeals. RCW 49.17.140(3). Should the employer not appeal from the corrective notice of redetermination, there is no statutory provision for keeping the corrective notice from becoming final. The result is that the unappealed corrective notice becomes a final disposition of the issues raised. Neither the employer nor the Department of Labor and Industries has the statutory authority to modify or set aside the corrective notice once it becomes final. In the case [4] at hand, American Neon Signs did not appeal the Corrective Notice of Redetermination as finally amended on October 1, 1993. It became final. The penalty was paid.
We have granted review for the purpose of recognizing the issues raised by the employer in its Petition for Review. Although our industrial appeals judge ruled in the employer's favor with respect to the nunc pro tunc order, the employer has nonetheless filed a Petition for Review. It essentially raised two arguments. First, the employer argues that it did not bring a Motion for Summary Judgment under the present docket number, 94 W346. Thus, the matter is not properly before the Board. Second, the employer argues that the Motion for Summary Judgment, brought under Docket 94 W135, does not include a prayer for relief on summary judgment under Docket 94 W346.
The first of the employer's arguments is without merit. The fact that our industrial appeals judge elected to establish a second docket number does not detract from either the evidence stipulated to by the parties or the substance of the employer's motion for summary judgment. Establishing a second docket number is a purely administrative function undertaken at the discretion of the Board as the circumstances may require. Here, our industrial appeals judge correctly recognized, after the parties had completed oral argument on the employer's Motion for Summary Judgment, that two separate orders of the Department were at issue; the December 10, 1993 nunc pro tunc order and the December 15, 1993 citation and notice. Further, the employer's oral argument of October 14, 1994, and its appeal letter of December 22, 1993, reference two Department decisions. Thus, it was appropriate for our industrial appeals judge to establish a second docket number. From this we conclude [5] that the failure of the employer's Summary Judgment Motion to reference both docket numbers does not deprive the Board of authority to decide an issue that is otherwise before the Board for adjudication given the substance of the underlying issue.
Similarly, we do not find persuasive the employer's argument that it has not made a prayer for relief under Docket 94 W346. In examining page two of the employer's Motion for Summary Judgment, we see that it raised the issue of whether an administrative agency can vacate a final order issued by that agency. We see that the employer argued, on page five of its Motion for Summary Judgment, that the nunc pro tunc order should be vacated. Finally, the employer clearly objected to the nunc pro tunc order during oral arguments heard October 14, 1994. On balance, we conclude that the employer's Motion for Summary Judgment reasonably contemplates that the Board render a decision on whether the Department's nunc pro tunc order of December 10, 1993, was statutorily authorized. As noted above, we conclude that there was no statutory authorization for the December 10, 1993 nunc pro tunc order.
The Corrective Notice of Redetermination, amended October 1, 1993, became final. Thus, the Department's nunc pro tunc order of December 10, 1993, is a nullity inasmuch as the Department was without statutory authority to issue such. Because the December 10, 1993 order is a nullity, no appeal can be taken from said order and the present appeal, identified as Docket 94 W346, must be dismissed. The Department is ordered to respect the finality of the corrective notice issued on September 29, 1993, and amended on October 1, 1993. [6]
FINDINGS OF FACT
- On July 29, 1993, the Department of Labor and Industries issued Citation and Notice 115516593, alleged four serious violations of safety standards and assessed a penalty in the amount of $7,800.00. On August 18, 1993, the employer, American Neon Signs, filed a Notice of Appeal from the citation and notice with the Department of Labor and Industries Safety Division. On September 3, 1993, the Department issued a notice of its intent to reassume jurisdiction over the matter. On September 29, 1993, Corrective Notice of Redetermination 115516593 was issued, and on October 1, 1993, an Amended Corrective Notice of Redetermination was issued and the Department affirmed three items and vacated one item, reducing the total penalty to $6,000.00.
- On December 10, 1993, the Department issued an order which vacated Corrective Notice of Redetermination 115516593. On December 22, 1993, the employer filed an appeal from Corrective Notice of Redetermination 115516593 with the Department of Labor and Industries Safety Division. On February 4, 1994, the Department transmitted the appeal to the Board of Industrial Insurance Appeals.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals does not have jurisdiction over the parties and the subject matter of this appeal.
- The Department was without statutory authority to issue the December 10, 1993 order which vacated Corrective Notice of Redetermination 115516593 nunc pro tunc.
- The employer's appeal raises no genuine issue of material fact.
- The Department order entered on December 10, 1993, is a nullity and as such the Board does not have jurisdiction over this appeal. Corrective Notice of Redetermination 115516593 issued on September 29, 1993, and amended on October 1, 1993, is a final and binding order on the Department and American Neon Signs. [7]
It is so ORDERED.
Dated this 28th day of March, 1995.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
ROBERT L. McCALLISTER Member