|IN RE: LISA K. SODEN||)||DOCKET NO. 85 2993|
|CLAIM NO. J-307824||)||DECISION AND ORDER|
- Claimant, Lisa K. Soden, by
- Welch & Condon, per
- David B. Condon
- Employer, Doubletree Motor Hotel, by
- Interface, per
- Kenneth L. Kohler, President
- Department of Labor and Industries, byThe Office of the Attorney General, per
- Deborah Hilsman, Assistant
- On August 29, 1983, the Department of Labor and Industries received an accident report from Lisa K. Soden in which she alleged she had sustained an injury on June 30, 1983, during the course of her employment with the Doubletree Motor Hotel. The claim was assigned Claim No. J-307824 by the Department. Thereafter, time-loss compensation was paid, and on October 21, 1985, the Department issued an order which provided: "It is determined that the original compensation rate of $451.88 established on or about August 29, 1983, and based on claimant's reporting of wages of $3.95 per hour at a full rate of 176 hours per month and verified by the employer, is correct and without error or omission as procedurally prescribed in RCW 51.08.178." On December 9, 1985, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals from the Department's order of October 21, 1985. On January 8, 1986, this Board issued an order granting the appeal, assigning it Docket No. 85 2993, and directing that further proceedings be held. 
- On June 30, 1983, Lisa K. Soden sustained an injury during the course of her employment as a food service worker at the Doubletree Motor Hotel.
- As a food service worker, Ms. Soden received $3.95 per hour from her employer, as well as gratuities or tips from her customers. The claimant reported the amount of her tips to her employer on a daily basis.
- The Doubletree Motor Hotel provided meals to its employees and required them to take a 40 minute break daily for such meals. Ms. Soden ate some of the meals provided.
- The Doubletree Motor Hotel reported the amount of the hourly wage paid, gratuities or tips reported by Ms. Soden, and the value of meals provided by it, to the Internal Revenue Service as wages paid to Ms. Soden; and Ms. Soden's income taxes were computed based upon the total amount reported by the employer.
- In computing the claimant's monthly wage pursuant to RCW 51.08.178, the Department did not include the value of tips received from customers, nor the reasonable value of meals provided to her by her employer.
- On February 10, 1986, the Superior Court of the County of Spokane, State of Washington, entered an order in Welch v. Department of Labor and Industries, Cause No. 85-20182708. In that order, Judge James Murphy found that insofar as RCW 51.08.178 failed to include tips in the computation of the wage base, it was unconstitutional and in violation of the Equal Protection Clause of the United States Constitution. The Superior Court order became final when no further appeal was taken within the statutory period for such appeal.
- The issue before the Spokane County Superior Court in Welch, supra, was whether the Department properly excluded tips and gratuities in its computation of monthly wage under RCW 51.08.178.
- The Department of Labor and Industries was a party to the litigation before the Superior Court of Spokane County, State of Washington, in Welch v. Department of Labor and Industries, Cause No. 85-20182708, but neither Ms. Soden nor the Doubletree Motor Hotel was a party to that action. 
- The Board of Industrial Insurance Appeals has jurisdiction over the subject matter and the parties to this appeal.
- Meals provided by the Doubletree Motor Hotel to Ms. Soden constituted "board" for purposes of computing her wages under RCW 51.08.178.
- In spite of the decision of the Superior Court of Spokane County, State of Washington, in Welch v. Department of Labor and Industries, Cause No. 85-20182708, the doctrine of collateral estoppel does not preclude the Department from litigating here the issue of whether the Department properly excluded tips and gratuities in its computation of wages under RCW 51.08.178, since neither Ms. Soden nor the Doubletree Motor Hotel was a party to that action.
- Superior Court opinions do not have precedential value to affect the common law of this state, and do not bind this tribunal under the doctrine of stare decisis.
- The order of the Department dated October 21, 1985, which stated, "it is determined that the original compensation of $451.88 established on or about August 29, 1983, and based on claimant's reporting of wages of $3.95 per hour at a full rate of 176 hours per month and verified by the employer, is correct and without error or omission as procedurally prescribed in RCW 51.08.178", is incorrect in part and should be reversed, and this claim remanded to the Department with directions to include the reasonable value of meals provided to Ms. Soden by the Doubletree Motor Hotel in its computation of the claimant's wages under RCW 51.08.178, and to take such further action as is indicated by the law or the facts.
This is an appeal filed by the claimant, Lisa K. Soden, on December 9, 1985, and amended on February 19, 1986, from an order of the Department of Labor and Industries dated October 21, 1985, which determined that the original time-loss compensation rate of $451.88 established on or about August 29, 1983, and based upon the claimant's reporting of wages of $3.95 per hour at a full rate of 176 hours per month, and verified by the employer, was correct and without error or omission as procedurally described in RCW 51.08.178. Reversed in part and remanded.
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 Department of Labor and Industries to a Proposed Decision and  Order issued on August 6, 1986, in which the order of the Department dated October 21, 1985, was reversed and remanded to the Department with directions to include the reasonable value of meals provided to the claimant by the employer, and gratuities and tips received by the claimant, in its computation of her wages under RCW 51.08.178, and to take such further action as necessary or required by law.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The evidence presented by the parties is adequately set forth in the Proposed Decision and Order.
The issues raised in this appeal both involve RCW 51.08.178. That statute provides, in pertinent part:
The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer, but shall not include overtime pay, tips, or gratuities....
The first issue before us is whether the Department properly excluded the reasonable value of meals provided to Ms. Soden by her employer in computing her wages. The Department argues that in the absence of statutory or case law definition, it has reasonably interpreted the word "board" to mean more than just the furnishing of meals in order to be considered a part of a worker's wages. It asserts that such meals are not wages unless they are furnished in conjunction with housing or lodging and that they are otherwise a mere gratuity provided by the employer. 
Since the Doubletree Motor Hotel reported the value of the meals provided to Ms. Soden to the Internal Revenue Service as wages, it appears that they were, in fact, part of her pay.
Furthermore, from the statute, we can discern no reason for the Department's interpretation. The statute specifies that wages include "board" and "housing" as separate and distinct forms of remuneration. "Board" is food or meals. "Housing" is a place to live. Webster's II New Riverside University Dictionary (1984). The statute clearly evidences a legislative intent that meals alone may be the equivalent of wages. The value of the meals provided Ms. Soden should be included in the wage base used for the computation of time-loss compensation.
Regarding the second issue before this Board, the claimant advances several arguments in support of her position that tips and gratuities she received should have been included in computing her wages, in spite of the unambiguous language in RCW 51.08.178 which excludes them. She contends that insofar as the statute excludes tips and gratuities, it is unconstitutional and in violation of the Equal Protection Clause of the United States Constitution.
Ms. Soden concedes that this Board cannot directly rule on the constitutionality of RCW 51.08.178. "An administrative body does not have authority to determine the constitutionality of the law it administers; only the courts have that power." Bare v. Gorton, 84 Wn.2d 380, 383 (1974). The claimant argues, however, that the doctrine of collateral estoppel bars the Department from litigating the constitutionality of the statute since it was a party to Welch v. Department of Labor and Industries, Spokane County Superior Court No. 85-20182708, in which said Superior Court declared the statute  unconstitutional. The Department did not appeal the Superior Court's decision.
The elements of the doctrine of collateral estoppel are set forth in Bordeaux v. Ingersoll Rand Company, 71 Wn.2d 392, 395 (1967):
Res judicata and collateral estoppel, kindred doctrines designed to prevent relitigation of already determined causes and curtail multiplicity of actions and harassment in the courts, are at times indistinguishable and frequently interchangeable. If the differences must be noted, it could be said that res judicata is the more comprehensive document, identifying a prior judgment arising out of the same cause of action between the same parties, whereas collateral estoppel relates to and bars relitigation on a particular issue or determinative fact. Both the doctrines require a large measure of identity as to parties, issues and facts, and in neither can the party urging the two doctrines as a defense be a stranger to the prior proceeding. He must have been a party, a participant, or in privity with either, and the action out of which the bar is claimed must be qualitatively the same as the case in which the doctrine is set up as a bar. While res judicata precludes relitigation of an entire cause because of an identity of parties and issues culminating in a judgment, collateral estoppel is less inclusive, preventing retrial of but one or more of the crucial issues or determinative facts. Owens v. Kuro, 56 Wn.2d 564 (1960); Riblet v. Ideal Cement Company, 54 Wn.2d 779 (1959); 2 L. Orland, Wash. Prac., sec. 387 (2d ed., 1965).
We recognized this principle in Owens v. Kuro, supra, when we said: a judgment is not res judicata nor is one collaterally estopped by judgment in a later case if there is no identity or privity of parties in the same antagonistic relation as in the decided action. Riblet v. Ideal Cement Company, 54 Wn.2d 779, 345 P.2d 173; Rufener v. Scott, 46 Wn.2d 240, 280 P.2d 253. An estoppel must be mutual and cannot apply for or against a stranger to a judgment since a stranger's rights cannot be determined in his absence from the controversy.
The instant case is not within the venue of Spokane County and neither Ms. Soden nor the Doubletree Motor Hotel were parties to the  Welch case. Accordingly, the doctrine of collateral estoppel has no application to benefit this claimant, nor can it bind her employer.
Finally, the claimant argues that this Board should utilize the Welch decision as stare decisis. This argument is untenable. State v. Fitzpatrick, 5 Wn. App. 661 (1971) held that unpublished opinions of the Court of Appeals do not become part of the common law of the state of Washington, are not precedential, and should not be considered in the trial courts. Similarly, unpublished opinions of Superior Courts do not have precedential value to affect Washington's common law. It would be inappropriate for this Board to bind itself to the unappealed judgment in Welch. It is simply and solely the law of that case; it is not the law of this state. We are bound to apply RCW 51.08.178 according to its clear language. The Department was correct in excluding tips and gratuities in its computation of Ms. Soden's wages under the statute.
FINDINGS OF FACT
CONCLUSIONS OF LAW
It is so ORDERED.
Dated this 9th day of March, 1987.
BOARD OF INDUSTRIAL INSURANCE APPEALS
GARY B. WIGGSChairperson
PHILLIP T. BORKMember