Link to MN Court of Appeals Decision
12-1900-16601-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
|
In the Matter of the Truck Rental Rate Effective December 20, 2004. |
FINDINGS OF FACTS, CONCLUSIONS OF LAW AND
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE |
In fulfilling his responsibilities under the Minnesota Prevailing Wage Law (MPWL), Minn. Stat. § 177.41 to 177.44 and rules at Minn. R. 5200.1101 to 5200.1120, the Commissioner of the Department of Labor and Industry (“DLI” or “Department”) determined operating costs that are used to set the minimum truck rental rates (“TRR”) for equipment furnished by truck drivers who own and operate trucks on highway construction projects.[1] Petitioners, consisting of firms and truck brokers, complained and asked the Commissioner to reconsider the TRR. The Commissioner denied the reconsideration. The Petitioners then requested a public hearing pursuant to Minn. Stat. § 177.43, subd. 4. Hearings were held on August 8 -12, 15, 18, and 19, 2005. The parties filed briefs on October 12, 2005. The record was then closed.
Gregg J. Cavanagh,
Attorney at Law,
Michael A. Sindt,
Assistant Attorney General, 1800
Paul W. Iversen,
Williams & Iversen, P.A.,
NOTICE
This report is
a recommendation, not a final decision. The Commissioner of Labor and Industry
will make the final decision after a review of the record. The Commissioner may
adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations.
Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be
made until this Report has been made available to the parties to the proceeding
for at least ten days. An opportunity must be afforded to each party adversely
affected by this Report to file exceptions and present argument to the
Commissioner. Parties should contact Nancy Leppink, Director of Legal Services,
Minnesota Department of Labor and Industry,
The following issues were identified in a prehearing Order.
(1) The DLI sent surveys to over 1,000 trucking firms and over 8,000 registered truck owners. Persons returning the surveys had to indicate that their vehicle was used in construction. Surveys so indicating were used, the others were not. Did that process violate the requirement of Minn. R. 5200.1105, to determine operating cost “by averaging the itemized costs of operating a vehicle as submitted by at least five trucking firms of various size and five independent truck owner operators, all selected by the commissioner as representative of the industry?”
(2) Whether the DLI used survey data from persons who were not “selected by the commissioner as representative of the industry.”
(3) Whether the DLI improperly included road contractors or others who are not “trucking firms” or “independent truck operators” in the survey.
(4) Whether the DLI failed to send survey forms to “enough” trucking firms and independent truck owner operators to obtain data that was representative of the industry.
(5) Whether the
DLI was authorized by Minn. Stat. § 177.41, et seq. and
(6) Whether the DLI failed to consider the “nature of the equipment furnished,” in violation of Minn. Stat. § 177.44, subd. 3, by setting rates for a generic trailer rather than more specific types of trailers.
(7) Whether the truck broker fees were required to be “representative of the industry,” were required to be set as a separate rate, or were otherwise improperly determined under Minn. R. 5200.1105.
(8) Whether DLI violated Minn. Stat. § 177.41, et seq. and Minn. R. 5200.1100, et seq., by determining statewide, rather than district-wide, rates.
(9) Whether the rates, costs, and broker fees that were determined unconstitutionally impair existing contracts.
Based on all the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Since 1973, the MPWL has required that
prevailing wage rates be set by DLI for workers on highway construction
projects and that prevailing wage rates also be set for “rental rates for truck
hire paid to those who own and operate the truck.”[2] Specifically,
Subd. 6. Prevailing wage rate. "Prevailing wage rate" means the hourly basic rate of pay plus the contribution for health and welfare benefits, vacation benefits, pension benefits, and any other economic benefit paid to the largest number of workers engaged in the same class of labor within the area and includes, for the purposes of section 177.44, rental rates for truck hire paid to those who own and operate the truck. The prevailing wage rate may not be less than a reasonable and living wage.
The “rental rates for truck hire” are referred to as the Truck Rental Rates (“TRR”).
2. The DOT is responsible for (inter alia) awarding state highway construction contracts, and to include the minimum rates determined by the DLI in bid specifications for public contracts.[3]
3. Minn. Stat. § 177.44, subd. 3, requires DLI to “determine” rates:
Subd. 3. Investigations by Department of Labor and Industry. The Department of Labor and Industry shall conduct investigations and hold public hearings necessary to define classes of laborers and mechanics and to determine the hours of labor and wage rates prevailing in all areas of the state for all classes of labor and mechanics commonly employed in highway construction work, so as to determine prevailing hours of labor, prevailing wage rates, and hourly basic rates of pay.
The department shall determine the nature of the equipment furnished by truck drivers who own and operate trucks on contract work to determine minimum rates for the equipment, and shall establish by rule minimum rates to be computed into the prevailing wage rate.
4.
The Commissioner certified the TRR at issue here
on December 20, 2004.[4] Petitioners Dahl Trucking, Inc., Eagle Trucking Inc., J & C Trucking of Forest
Lake, Inc., J.D. Donovan, Inc., Jacobs Trucking Inc., Joe Mullin Trucking,
Inc., L & D Trucking; W.B.E., Inc., M.B.E., Inc., MTS. Inc., Malecha
Trucking, Inc., Rucki Trucking Inc., Shaw Trucking, Inc., T & S Trucking of
Buffalo, Inc., and Timm’s Trucking Inc., are trucking firms and truck brokers
doing business in Minnesota. Petitioners
have challenged the DLI Commissioner’s certification of the 2004 TRR.
5. Throughout the 1990’s, the TRR was repeatedly challenged and debated.[5]
6. Ultimately, the DLI has adopted Minn. R. 5200.1105 concerning the determination of the operating costs. The rule specifies that:
Operating costs shall be determined by averaging the itemized costs of operating a vehicle as submitted by at least five trucking firms of various size and five independent truck owner operators (ITOs), all selected by the commissioner as representative of the industry.
The following items shall be considered as
operating costs of a vehicle: the average cost of the vehicle depreciated over
seven years, insurance, fuel, oil, tires, taxes, licenses, maintenance, repair,
and any administrative expense associated with the vehicle’s operation
including truck brokers’ fees. The truck broker fee is a portion of the minimum
truck rental rate and shall be determined by annual survey.
7. The rule became effective on July 26, 2001.[6] It creates a rate formula. The formula, which provides minimum compensation rates for ITOs and trucking firms when their vehicles are used on state-funded projects, is :
TRR = prevailing wage rate for truck drivers + operating costs[7]
8.
The DLI determines the prevailing wage rate for
laborers and mechanics employed on highway construction projects in
9. Other than Minn. R. 5200.1105, the DLI has not adopted any other rules that prescribe the method or procedure for determining the operating costs used to determine the operating costs used to set the minimum TRR.
10. In 1988 and 1989, the DLI conducted surveys to obtain data relative to operating costs.[10] In 1988, 127 independent truck owners and contractors in the trucking industry submitted responses to the DLI’s survey.[11] On October 17, 1988, the DLI certified the TRR based on the 1988 data.[12] In 1989, the DLI again conducted a survey to determine the TRR. The rates were challenged and the DLI never certified the rates using the 1989 survey data.[13]
11. In November 1989, the DLI established a Labor Standards Advisory Committee to discuss issues related to the MPWL and the TRR.[14] The Advisory Committee included truck owners, brokers, union officials, contractors, a university professor and DLI staff.[15] The Advisory Committee met 12 times.[16] The Advisory Committee discussed the DLI’s use of surveys to obtain data regarding operating costs. On March 19, 1990, the committee gave a list of recommendations to the DLI Commissioner that included definitions for terms used to establish the TRR.[17] All committee members, except Petitioners Diane Vinge-Sorenson and Colleen Donovan, signed the letter with the recommendations to the Commissioner.[18] Ms. Vinge-Sorenson and Ms. Donovan asserted in a separate letter that the Advisory Committee was biased against positions they advocated.[19]
12. In 2001 and 2002, the DLI conducted a survey to collect operating cost data to establish the TRR.[20] The DLI determined that the data obtained from these surveys was insufficient to establish the TRR.[21]
13. In 2003, the DLI surveyed the trucking industry to obtain operating cost data to determine the TRR.[22] The Commissioner ultimately elected not to certify the TRR using the 2003 data because, having surveyed for tractor/trailer combinations and for tractor-only, the difference between those two categories was only 29¢.[23] The Commissioner concluded that the 29¢ difference between tractor-only and tractor/trailer did not make sense and this called into question the reliability of the data.[24]
14. In the fall of 2003, the Department began preliminary work to determine the 2004 operating costs needed to establish the TRR.[25] The Commissioner considered different ways to obtain operating cost data and concluded that a survey remained the best approach.[26] Dr. Theresa Van Hoomissen, Director of Research and Statistics for the DLI, was chosen to design the 2004 survey.[27] She was asked to improve the survey form and to suggest ways to increase the number of respondents to the survey.[28] Dr. Van Hoomissen initially did some internet research to determine how truckers typically report their costs and found a booklet that was intended to help truckers characterize their operating costs.[29] Dr. Van Hoomissen discussed operating costs with the DLI’s chief financial officer and a DLI accountant to obtain their perspective on operating costs and spoke with a private accountant who works primarily with trucking firms.[30] Using this information, Dr. Van Hoomissen drafted a survey questionnaire.
15. Dr. Van Hoomissen reviewed the prior TRR surveys and concluded that they had too many cost categories making it too difficult for respondents to complete and that fewer cost categories and better instructions would perhaps increase the response rate.[31]
16. In June 2004, DLI presented a draft survey and proposed instructions presented at a meeting with industry representatives, the Minnesota Trucking Association and ITOs for comment.[32] Dr. Van Hoomissen was present during the meeting. Much of the discussion about the proposed survey concerned the broker’s fee, which was described as the difference between what the contractor pays the broker and what the broker pays the trucker.[33] Attendees at the meeting recommended adding a check box to the survey that would require the respondent to indicate that the equipment was used in highway construction.[34] The suggestions were considered by the DLI and subsequently incorporated into the survey form and instructions.[35]
17.
The term “broker’s fee” is somewhat
misleading. It is not a fixed sum
charged by a broker. Instead in this
industry in
18. The use of truck brokers has arisen, primarily in the Twin Cities region, as contractors have increasing relied upon independent truck drivers rather than employees to drive trucks.[37] Historically, they have done so to avoid paying the prevailing wage rate that must be paid to employee drivers. A truck broker acts as a conduit between prime contractors, who need trucks on their highway construction projects, and independent truck owner/operators who have equipment available for use on such projects. Typically, contractors call a trucking broker and request a certain number of trucks, of a certain type, at a certain operating cost, at a certain time.[38] Truck brokers typically agree with the contractor on the price of the trucks.[39] Traditionally, truck brokers are “paid” by retaining the difference between the amount they are paid by the contractors for the driver and the equipment and the amount they pay a trucking firm or ITO for the driver and the equipment.[40] Typically, trucking firms and ITOs do not know the amount the broker has retained in a particular transaction.[41] Some trucking firms do not pay broker’s fees.[42] The fact that contractors usually pay the brokers and do not pay the owner/operators directly has greatly complicated the application of a TRR. Nonetheless, truck broker’s fees may be considered an administrative expense and part of operating costs of an owner/.
19.
The DLI recognized that it is common within the highway construction industry in
20. The person filling out the form was required to certify that all trucks reported on the survey form were used in road construction projects, and to specify the type of unit for which they were reporting, the type of operation that they constituted (either an employer/contractor/trucking firm, or an independent owner operator) to specify the number of units and hours of operation for which they were reporting, and to specify costs in seven categories: purchase price of the vehicle, divided by seven; fuel and oil (except in the case of trailer only); maintenance, repair, and tires; vehicle insurance; HVU taxes, licenses and permits; truck broker fees; and administrative expenses.[47] The 2004 survey form included each of the cost items listed in the statute and specific instructions to respondents for each item listed.[48] Along with instructions for completing the survey the DLI included a set of definitions.[49]
21.
The DLI identified the universe of prospective
respondents from several sources.[50] The DLI had a list of 1200 names it had built
up over the years.[51] Dr. Van Hoomissen also contacted
several departments to determine whether definitive lists of ITOs and trucking
firms involved in the highway construction industry in the State of
22. The DLI determined that it could not afford to survey 33,000 entities to obtain operating cost data, but that it could afford to survey about 10,000 entities.[56] Since the DLI already had a list of 1200 entities, Dr. Van Hoomissen proceeded to narrow the list of 33,000 to a list of 8800, for a combined total of about 10,000 who would actually be surveyed.[57] Dr. Van Hoomissen accomplished this by stratifying the list of trucks. She stratified the list on two different categories, the number of trucks owned by the same entity, and the region of the State in which the trucks were registered.[58] Dr. Van Hoomissen determined how many registered trucks fit within each grid of number of vehicles owned and region of the State, and determined how many within each grid should be chosen in order to total 8800.[59] The 8800 were selected randomly using statistical methods, but were rated slightly more toward persons owning a small number of trucks, because the Department believed it would be more difficult to get responses from those truck owners and, thus, more initial surveys should be sent to those truck owners.[60] The list of 8800 was then combined with the list of 1200 to establish the complete mailing list.[61]
23. On July 9 2004, the DLI began mailing 10,105 surveys to potential respondents in order to obtain the data needed to determine the operating costs that would be used to set the TRR.[62]
24.
There are different types of trucks used in
highway construction in
25.
The DLI
requested data about four types of trucks used in highway construction
projects; semi-tractor with a trailer, two-axle straight body trucks,
three-axle trucks and four or more axle trucks.[66] It considered these general classifications
are sufficiently broad to cover all possible truck engaged in highway
construction in
26. The DLI received 139 responses of which the Department relied on 32 survey reports for tractor only, 21 for trailer only, 26 for four or more axle and 16 for three axles.[68] The DLI’s determination of the TRR rests upon the usable survey responses received by the September 9, 2004 deadline.[69] The DLI excluded from consideration surveys that were not received by a designated deadline.[70] The DLI also rejected survey responses it determined were improperly completed or that were found to have “outlier” data.[71]
27. The rule specifies that the Department must average costs of those entities selected by the Commissioner for inclusion in determining the operating costs.[72] Dr. Van Hoomissen eliminated surveys that did not indicate that equipment was used in road construction.[73] She also eliminated certain surveys that reported costs that were far lower or higher than the other reported costs for a particular type of truck. That process tends to limit the effect of atypical cost surveys included in the sample.[74] Even when such “outliers” were eliminated from the sample, the resulting changes in the averages were insignificant.[75]
28. In calculating the TRR, the DLI made no effort to obtain data about operating costs from any sources other than as indicated in these Findings.
29.
The rule provides no criteria upon which to
determine whether a particular individual or entity is representative of the
highway construction industry in
30.
For the
“tractor only” portion of the data used for analysis, the DLI selected survey
responses from 13 trucking firms, varying in number of units from 1 to 68 and
19 ITOs.[76] These survey responses were selected to
determine the average operating cost.[77] The “tractor only” responses were from at
least five trucking firms of varying size that were included among the survey
responses selected to determine the average operating cost.[78] With respect to four-axle units, nine
trucking firms are included in the sample and they range in size from 1 unit to
46 units containing several firms with a small number of units, some with a
medium number of units, and some with a large number of units.[79] There were also 19 ITOs included in the
sample.[80] With respect to the four-axle units, the
Department identified 9 trucking firms of varying size and 17 ITOs.[81] With respect to three-axle units, five
trucking firms were included in the sample. These five firms had 2 units, 3
units, 10 units, 11 units, and 25 units, respectively. There were also 10 ITOs
in the sample.[82] The five trucking firms were of varying size.[83]
31.
For the “trailer only” portion of the database
used for analysis, the DLI identified 7 ITOs with 8 trailers and 13 trucking
firms and those firms had between 1 and 71 trailers.[84] Five of the trucking firms had fewer than 10
units, three had 10 to19 units, two had 20 to 29 units, one had 30 to 39 units,
and two had 71 units.[85]
32. On November 8, 2004, the DLI published a Notice of Determination of the TRR and Notice of an informal conference to be held on November 30, 2004, pursuant to Minn. R. 5200.1105.[86]
33. On November 30, 2004, the DLI held an informal conference to present data about the rates, costs and fees.[87]
34. On December 20, 2004, the DLI formally certified the operating costs of a tractor trailer, four or more axle, 3 axle and tractor only.[88] These operating costs were then combined with the appropriate regional prevailing wage rate for drivers of tractors, four or more axle trucks and three axle trucks, which were then published as the Certified Truck Rental Rate.[89] The document was signed by Commissioner Brener and published in the State Register as required by law.[90] The classification of trailer only was not listed in the certified rates.[91] Only rates for the four types of equipment were certified by type and region.[92]
35. On January 18, 2005, Petitioners requested reconsideration of TRR, operating costs and truck broker fees.[93]
36. An informal conference with the Commissioner was held on February 3, 2005, where Petitioners presented oral and written argument.[94]
37. On February 14, 2005, the Commissioner issued a decision upholding the challenged TRR rates, costs and fees.[95]
38. On March 1, 2005, Petitioners requested a public hearing.[96]
39. On May 9, 2005, DLI issued a Notice and Order for Hearing. The Office of Administrative Hearings assigned the case to Administrative Law Judge Steve M. Mihalchick, who determined that the Petitioners were advancing nine contentions that the operating costs used to set the TRR in 2005 violated Minn. Stat. § 177.41 et seq., Minn. R. 5200.1105 and constitutional requirements.[97]
40.
At the contested case hearing, Dr. Frank Martin,
an assistant professor at the
41. Dr. Van Hoomissen agrees that the DLI survey did not yield statistically valid results.[107] She stated that the DLI survey was designed based on the operating cost rule requirement that the DLI obtain data from at least five trucking firms of varying size and at least five ITOs in order to determine average operating costs and that the rule does not require a statistically valid survey.[108] Dr. Van Hoomissen stated that the survey method proposed by Dr. Martin would have been too expensive for the DLI.[109] She opined that she saw no evidence of the potential for voluntary bias response. She opined that there was no indication that any potential respondent had an increased motivation to return the survey nor was there any indication that the respondents were atypical of the universe.[110]
42. The DLI selected the respondents in that it: 1) selected only those who filled out their surveys completely; 2) selected only those who timely turned in the survey; and 3) selected only those who checked the box indicating that the vehicles reported were, in fact, used on road construction projects in the State of Minnesota, as representative of the industry.
43.
The operating cost survey was sent to many
participants in the highway construction industry in
44.
Petitioners
assert that the survey is invalid because it may include entities that have
very different cost structures.[115] The fact that contractors and pure trucking
firms have different cost structures is a function of the size of the fleets
they operate. Any differences in the cost structure between contractors and
other trucking firms is a function of their size, and should not disqualify
those prime contractors that qualify as trucking firms under the rule from
being included in the sample from which average costs are determined.
45.
Some
truck brokers who received the 2004 survey elected not to complete the survey
because they felt that their participation was not making a difference.[116]
46.
There are widely varying types of operations,
types of equipment used, age of equipment used, amount of time equipment is
used within the highway construction industry, and wide variations on a number
of other characteristics of businesses and individuals within the highway
construction industry. Fulltime
construction industry trucks are typically used 1100 to 1800 hours each
construction season.[117] Some ITO semi-tractors are used primarily for
farm purposes.[118] Not all ITOs working in the highway
construction industry work fulltime.[119] The evidence shows that truck owners revenues
are derived from a variety sources, not just providing trucking for road
construction projects. Therefore, some
portions of their operating costs are from other operations.[120] There is no “typical” participant in the
highway construction industry in the State
of
47. There are at least eight different types of trailers regularly used in highway construction: belly dumps, end dumps, side dumps, live bottoms, flowboys, flatbeds, tankers, and pups.[121] There are significant differences in the usage of the various types of trailers. Each of these type of trailer has different operating costs, including maintenance costs and insurance cost.[122] The marketplace charges different prices for each of these trailers.[123]
48.
The DLI was aware of various types of trailers
used in the highway construction industry in
49. The DLI did not separately survey for truck broker fees, but instead relied upon data submitted by contractors, trucking firms and ITOs.[125] There is no requirement in the rule that the DLI survey only truck brokers to obtain information about the truck broker fee. The Department was aware of issues surrounding the truck broker fee and took steps to address the issue in its survey and analyze the data pertaining to the truck broker fee. The DLI has not “certified” a truck broker fee.[126]
50.
Starting in 2002, DLI began received copies of
monthly trucking reports contractors are required to file with the DOT.[127] The rates found from the 2004 TRR survey are
similar to the actual costs contained in the monthly trucking reports filed
from the various districts to the DLI.
For example, in District 2, the trucking reports show an average actual
cost for 6 different companies over 2 months at $63.21 per hour, with a range
of $74.50 to $53.00 for tractor-trailer.[128] In District 2 in the December 20, 2004
certified truck rental rate was $68.56.[129] Duininck Brothers, Inc. reported an estimated
rate of $62.00 for tractor-trailers in District 3.[130] The rate certified for tractor-trailers in
District 3 was $68.06.[131] In District 4, the trucking reports show an
average actual cost for 11 different companies over 1 month at $52.25 per hour
with a range of $53.00 to $43.00 per hour for tractor-trailers.[132] Duininck Bros. reported an estimated rate of
$61.00 for tractor-trailers in District 4.[133] The rate certified for tractor-trailers in
District 4 in the December 20, 2004 the certified rate for
tractor-trailers was $60.26.[134] In District 5, the trucking reports show an
average actual cost for tractor-trailers for 10 different companies over one
month at $63.34 per hour with a range of $55.00 to $75.00 per hour.[135] The rate certified for tractor-trailers in
District 5 was $63.31.[136] Duininck Bros. reported an estimated rate of
$56.00 for District 6.[137] The rate certified for tractor-trailers for
District 6 was $71.04 per hour.[138] In District 7, Duininck Bros. reported an
estimate rate of $67.00 for tractor-trailers.[139] The rate certified for tractor-trailers for
District 7 was $67.14 per hour.[140] In District 8, Duininck Bros. reported an
estimated rate of $68.00 for tractor-trailers.[141]
In District 9,
51. Comparison of the certified rates to the actual rates reported in monthly trucking reports shows that the certified rates are reasonably close to the reported costs.
52. The Commissioner, in his letter of February 14, 2005, indicated his determination that the surveys used to calculate the TRR were representative of the industry.[146] There is no evidence that the survey failed to obtain information from a representative sample of the industry.
53. The operating cost component of the truck rental rate was certified on a statewide basis, not on a district-wide basis.[147] While the rules require that the labor cost portion must be made on a district-wide basis, nothing in the rules requires that operating costs be determined on a district-wide basis.[148]
54. The TRR certified in 2004 caused some problems for some of Petitioners with some long term contracts that they had signed before the TRR went into effect.[149] For a few very large multi-year contracts, they bid fixed prices based on market rates for trucks at the time the contracts were entered into.[150] Since the 2004 TRR took effect, they have had difficulty hiring ITOs at the rates that they had been paying before the TRR took effect.[151] One broker was aware that the DLI was in the process of setting the TRR at the time he entered into the fixed price contract, but made no provision for the possibility of a higher TRR rate being established.[152] Petitioners did not independently contract with ITOs to ensure that ITOs would be available at the rates contemplated by the fixed price contracts.[153] The fixed term contracts had no cost escalators.[154] Over the past year Petitioners’ costs have increased in the range of $7.00 to $9.00 an hour.[155] Much of this increase was due to increasing cost of fuel. The price of fuel increased from an average of $1.78 per gallon for diesel in 2004 to $2.37 per gallon at the time of the hearing.[156] In order to keep pace with such rising costs, Petitioners’ have historically increased the rate they charge contractors about $1.00 per year.[157] The TRR is intended to ensure that truck driver owners receive at least the prevailing wage rate plus their operating costs. The MPWL does not prevent truck drivers from receiving more than the TRR if the market sets a higher rate. In some areas of the state, the market requires contractors and brokers to pay more than the certified TRR.[158]
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS OF LAW
1. This matter is a “contested case” because it arises under the provision of Minn. Stat. § 177.44, subd. 4, that allows a person to petition “for a public hearing as in a contested case under sections 14.57 to 14.61.” Unless the process is modified by statute or rule, contested cases are hearings de novo conducted by an Administrative Law Judge who makes a recommendation to the agency head. The agency head then makes the final administrative decision.
2. Because Petitioners are challenging the correctness of the truck rental rates established by DLI, the burden is upon Petitioners to prove the facts at issue by a preponderance of the evidence.[159]
3. Because this is not a judicial review of an agency decision, rules and standards applicable to judicial review do not apply. Technically speaking, cases requiring courts to give deference to agency interpretations do not apply because there is not a final agency interpretation yet. However, agency personnel may be accorded deference based upon expertise acquired through their training and experience determining prevailing wage rates and applying the relevant statutes and rules. Thus, the DLI’s interpretation of its rule is entitled to be upheld if it is reasonable.
4. The MPWL directs the DLI to “determine” prevailing wage rates and operating costs. The statute is silent on precise details of how the DLI should obtain operating cost data used to set the TRR.
5. It is a reasonable interpretation of the statute and the rule that the DLI may survey the relevant industry to determine operating costs.
6. The DLI sent the 2004 TRR survey to a sufficient number of trucking firms and ITOs to obtain the data needed to determine operating costs used to set the TRR.
7.
The entities selected by the DLI for the TRR survey
were broadly representative of the highway construction industry in
8. The rule provides no criteria upon which to determine whether a particular individual or entity is representative of the industry. The definition of trucking firm under the rules says nothing about the percentage of revenue generated by renting trucks or any minimum amount of time that trucks must be rented to other contractors in order to qualify as a trucking firm. A trucking firm is any business entity that owns more than one vehicle and rents those vehicles to contractors on highway construction projects, regardless of the amount of time or frequency with which they rent those trucks to other contractors. Contractors, including prime contractors, qualify as trucking firms under the rule, and are therefore appropriately included in the sample of surveys used to determine average operating costs for the operating cost component of the truck rental rates. [160] As long as the trucking firms used for calculating average operating costs are of varying sizes, and there are at least five of them, and there are also at least five ITOs used, the sample is considered sufficiently representative under the rule.[161]
9. There is nothing in the MPWL or rule that requires statistical certainty in the results of the determination of operating costs. There is nothing in the rule that requires that the same number of trucking firms and ITOs be included in the sample from which average operating costs are determined.
10. There is no evidence of voluntary bias affecting the validity of the responses. There is no evidence that any potential respondent had an increased motivation to return the survey nor was there any indication that the respondents were atypical of the universe.
11. The similarity of the certified rates and the actual reported rates supports the conclusion that the methods used by the DLI to determine operating costs used to set the TRR was reasonably accurate.
12. The rule states that “operating costs shall be determined by averaging the itemized costs of operating a vehicle.”[162] It is a reasonable interpretation of that language for the DLI to count each vehicle reported in determining that average, rather than averaging the average costs of each entity that reported.
13.
The survey procedure used by the Department in
this case provided sufficiently valid results to meet the requirements of the
MPWL and
14. The law only requires the Commissioner to consider the “nature of the equipment furnished.”[163] It does not require the Commissioner to set a rate for each type or make and model of truck or trailer. [164]
15.
The statute and rule allow the Commissioner to
exercise discretion to establish general classifications of equipment. The DLI complied with the statute and the
rule when it set the rate for one generic type of trailer. It may have been more accurate on a detail
level to create categories of trailers, but nothing in the statute or rules
requires that the Department survey for every possible type of vehicle.
16. There is no requirement in statute or rule that the Commissioner certify a broker fee or that the broker fee reported by the DLI be representative of the industry. The rule requires the DLI to annually survey for truck broker fees, and that the fee be a component of the “administrative expense associated with the vehicle’s operations” similar to fuel, oil and tires.
17. The statute and the rule permit the Commissioner to determine the various components of operating costs on a state-wide basis rather than by specific areas.
18. Petitioners have not demonstrated that the TRR determined by the DLI unconstitutionally impairs existing contracts. There was no retroactive application of the TRR and brokers had it within their power to negotiate future rates they knew would likely be affected by the future TRR.
RECOMMENDATION
IT IS RECOMMENDED that the petition challenging the decision of the Commissioner not to reconsider the certified truck rental rates be DENIED.
Dated this 28th day of October, 2006
s/Steve M. Mihalchick
_________________________
STEVE
M. MIHALCHICK
Administrative
Law Judge
MEMORANDUM[165]
Survey related issues
Petitioners argue that the rule requirement that the Department “select” representatives of the trucking industry indicates that the Department must use some process other than a survey to obtain information. Petitioners further question the design, methodology and conclusions of the Department’s survey.
The DLI may conduct surveys to determine operating costs.
Although the statute does not
direct how the DLI should collect the data needed to determine operating costs,
nothing in the statutory language
precludes the use of a survey to obtain data.[166] Similarly the MPWL does not specify
that a survey must be used for the determination of prevailing wage rates
either, and yet a survey has been used, without protest, to determine
prevailing wage rates since 1973.[167]
While the rule does not explicitly direct the Department to conduct surveys to obtain data on operating costs, the Department has consistently interpreted the rule as permitting surveys. Petitioners argue that because the rule uses the word “selected” rather than “surveyed,” the rule must have intended the use of an entirely different method. Petitioners further argue that “selected” means the Commissioner must “determine” a group of trucking firms and ITOs that are representative and hold a meeting with them to determine average costs.[168] Although it is true that the rule does not explicitly require a survey for the operating cost component, the newer language including broker fees in the survey clearly suggests that a survey for all components of operating costs was intended. [169] The legislature has delegated substantial discretion to the DLI to choose appropriate methodologies to obtain data necessary to determine the minimum TRR using multiple, nondeterminative criteria. The DLI acted reasonably deciding to use a survey process to determine operating costs. It is not required by the rule to use any other process. Petitioners have not demonstrated that the Department’s interpretation of its own rule is unreasonable. Petitioners’ arguments that the rule requires the DLI to use some methodology other than a survey to determine operating costs are without merit.
Petitioners’
expert correctly observed that the operating cost survey was not statistically
valid.[170] He pointed to annual Crop Reports published
by the United Stated Department of Agriculture as an example of a statistically
valid survey.[171] Congress directed the Department of
Agriculture to prepare statistical reports on a variety of crops.[172] The National Agricultural Statistics Service
of the Department of Agriculture is required by federal regulations to prepare statistically
valid reports on crops.[173] Unlike these federal statutes and
regulations, there is no similar reference to statistics or statistically valid
surveys in either the
As the Minnesota Department of Administration recognized in its 1991 study, the most appropriate federal agency and process for comparison is the United States Department of Labor, Wage and Hour Division, which uses survey data voluntarily submitted by employers to establish prevailing wage and benefit rates for particular geographic areas.[174] Like the survey process at issue in this case, the Wage and Hour Division uses a process it describes as “universe sampling” rather than statistical sampling.[175]
The DLI readily admits that the survey did not yield statistically valid results.[176] If the legislature wanted the DLI to only use statistically valid surveys to determine operating costs it could have plainly said so in the statute.[177] The statute and rules permit the department to engage in a survey in order to determine operating costs, and the DLI was within its statutory authority and within the authority given it in the rules in conducting such a survey. In conducting such a survey, however, the DLI needs only meet the criteria specified in the statute and rules,
Petitioners have
questioned whether the survey respondents were “representative of the industry”
but have failed to show how they were not representative. Appropriate respondents were included in the
DLI survey. Petitioners argue that 2004
TRR survey is not reliable because it did not survey the relevant universe of
trucking firms and ITOs. The evidence
presented establishes that there really is no “typical” participant in the
highway construction industry in the State
of
The rule provides no criteria upon which to determine whether a particular individual or entity is representative of the industry. There are only two criteria: that there must be at least five trucking firms and five ITOs’ and that the trucking firms must be of varying sizes. The Department met both requirements.
It is clear from the record that the DLI sent
surveys to over 10,000 possible respondents.
There is evidence that 8,800 of the surveys were sent to a sample
representative of all 33,000 trucks licensed in
Petitioners assert that inappropriate respondents were included in the survey. The rule provides no criteria upon which to determine whether a particular individual or entity is inappropriate.
Petitioners
contend that the broker fees, as determined and reported by the DLI, are not
representative of broker fees actually paid within the highway construction industry in the State of
There is no evidence that volunteer bias affected the validity of the survey. Petitioners’ expert asserts that a voluntary survey can’t produce reliable results.[180] There is no evidence that there was any group of truck owners that would be highly motivated to fill out the survey and also have atypical cost structures.[181] There is no evidence that the survey was tainted by volunteer bias.
The survey results were analyzed properly by the DLI. Petitioners criticize the analysis of the survey results, particularly the use of weighted averages. Dr. Martin opined that the DLI’s use of weighted averages was contrary to the rule’s requirements that at least five trucking firms of various size and five ITOs be selected to determine average operating costs. Dr. Martin read into the rule a requirement that there be an equal number of trucking firms and ITOs selected and that their operating costs be equally represented within the sample. There is no such requirement. The rule states that at least five from each category must be included in the sample, but nowhere does the rule state that an equal number of trucking firms and ITOs must be used. Nothing in the statute or rule precludes the use of a weighted average of the data received to determine the average operating cost.
Separate Rates for
Trailers and Tractor-trailers
Petitioners
argue that DLI can set rental rates for trucks but it lacks authority to
establish rental rates for trailers. The
statute provides that the DLI shall “determine the nature of equipment
furnished by truck drivers.”[182] This
phrase encompasses both trucks and trailers.
It is common within the
highway construction industry in the State of
Inadequate Classification of Trailers
Petitioners argue that the DLI failed to adequately survey for the various types of trailers used in the industry. It is undisputed that there are many different types of trailers, for example: belly dumps, end dumps, side dumps, low boys, and flow boys. It was also undisputed that most of those types of trailers could be made of either aluminum or steel. It was undisputed that each type of trailer had different costs of purchase, different costs of maintenance, different amounts of maintenance required, differences in the tires and amount of wear on the tires, and other differing cost factors. The DLI decided not to make the survey unnecessarily complex by further breaking down the trailers into smaller groups. The DLI hoped that by making the survey form easier to use and understand, it would get higher survey participation. This was a reasonable choice.
Operating Costs were
Appropriately Certified on a State Wide Basis.
Petitioners argue that the operating cost component of the TRR was certified on a state-wide, not a district-wide basis. Minnesota Rule 5200.1105 specifically references the survey methods under 5200.1000 to 5200.1120 for the labor cost (prevailing wage) portion of the truck rental rates. The labor cost portion must include the wage and benefit determinations as made on an area-specific basis under those rules. The TRR are not required to be determined on the same basis. The DLI’s decision to certify operating costs on state-wide bases is a reasonable interpretation of the rule.
Impairment of
Contracts
Petitioners assert an impairment of contracts issue, citing constitutional law cases. The Administrative Law Judge may consider claims of unconstitutional interpretation or application of a statute or rule that do not amount to claims that the statute or rule is invalid.
Petitioners’ acknowledge that the truck rental rates certified on December 20, 2004, do not apply to construction contracts entered into prior to that date so there was no retroactive application.[183] Moreover, any contract that sets a fixed price without the possibility of adjustment runs the risk that costs could increase during the life of the contract. For example, the continually increasing cost of fuel impacts the profitability of prior contracts.[184] The evidence shows that some truck brokers entered into long term contracts knowing costs or the TRR could increase during the life of the contract, but nevertheless signed contracts without any provision for the possibility of changes that would clearly affect their profits. Their lack of foresight was the primary cause of their problems. The brokers were well aware that the DLI was attempting to implement the TRR and that knowledge should have impacted their contract bids on the multi-year projects. The determination of the 2004 TRR did not unconstitutionally impair any existing contracts.
S.M.M.
[1] Unless indicated otherwise, all reference to Minnesota Statutes are to the 2004 edition and all references to Minnesota Rules are to the 2005 edition.
[2] Laws 1973, c. 724, § 4; codified at Minn. Stat. § 177.42, subd. 6.
[3] Minn. Stat. § 177.44, subd 7.
[4] Ex. 101, section 7.
[5] The DLI began discussing draft TRR rules in the spring
of 1987. Ex. 102, p. 63. A public hearing was held on June 1, 1988
before ALJ Peter C. Erickson, who determined that the proposed rule, with
modification, was reasonable and necessary.
[6] Ex. 102, p. 64.
[7]
[8]
[9]
Testimony of Dr. Theresa Van Hoomissen, Tr. 1381- 1382; Testimony of Erik
Oelker, Tr. 1136-1137;
[10] Exs. 109, 110, 113, p. 4 -5.
[11] Exs. 102 and 111.
[12] Ex. 109; Testimony of Diane Vinge-Sorenson, Tr. 860.
[13] Ex. 102, p. 48 and 63 – 65.
[14] Exs. 102 , p. 65- 66 and 103.
[15]
[16]
[17]
[18] Id; Testimony of D. Vinge-Sorenson, Tr. 870.
[19] Ex. 102, p. 67.
[20] Exs. 1 and 2; Testimony of E. Oelker, Tr. 24 - 25.
[21]
[22] Exs. 5 – 10.
[23] Testimony of E. Oelker, Tr. 1170 -1182.
[24] Testimony of E. Oelker, Tr. 25 – 26.
[25] Testimony of Dr. T. Van Hoomissen, Tr. 1366.
[26] Testimony of William Bierman, Tr. 1307 – 1308; Ex. 12 (copy of survey form).
[27] Testimony of Dr. T. Van Hoomissen, Tr. 1366.
[28]
[29] Testimony of Dr. T. Van Hoomissen, Tr. 1367.
[30] Testimony of Dr. T. Van Hoomissen, Tr. 1376.
[31] Testimony of Dr. T. Van Hoomissen, Tr. 704 – 705 and 1368; Exs. 5 and 6.
[32] Testimony of Dr. T. Van Hoomissen, Tr. 1377-1378.
[33] Testimony of Dr. T. Van Hoomissen, Tr. 1378- 1379.
[34] Testimony of Dr. T. Van Hoomissen, Tr. 1379 – 1380.
[35]
[36] Testimony of C. Donovan, Tr. 1001.
[37] Testimony of E. Oelker, Tr. 90.
[38] Testimony of M. Fiedler, Tr. 124-126; Testimony of D. Vinge-Sorensen, Tr. 787 – 790.
[39] Testimony of D. Vinge-Sorensen, Tr. 831 – 835; Testimony of M. Fiedler, Tr. 234.
[40] Testimony of M. Fiedler, Tr. 262 – 263; Testimony of Earl Johnson, Tr. 392 – 393.
[41] Id; Testimony of R. Perry, Tr. 549.
[42] Testimony of C. Donovan, Tr. 1000 – 1001.
[43] Testimony of W. Bierman, Tr. 1346 – 1355.
[44]
[45] Ex. 1.
[46] Testimony of E. Oelker, Tr. 52.
[47] Testimony of E. Oelker, Tr. 25 - 35; Exs. 1 and 12.
[48] Exs. 12 and 101, section 1.
[49] Ex. 12, p 3 – 4; Testimony of Dr. T. Van Hoomissen, Tr. 1368.
[50] Testimony of Dr. T. Van Hoomissen, Tr. 1371 – 1372.
[51]
[52] Testimony of Dr. T. Van Hoomissen, Tr. 1360 – 1370.
[53] Testimony of Dr. T. Van Hoomissen, Tr. 1372 – 1373.
[54]
[55] Testimony of Dr. T. Van Hoomissen, Tr. 1371 – 1374.
[56] Testimony of Dr. T. Van Hoomissen, Tr. 1371 – 1374; Testimony of E. Oelker, Tr. 45-46.
[57] Testimony of Dr. T. Van Hoomissen, Tr. 1371 – 1375.
[58] Testimony of Dr. T. Van Hoomissen, Tr. 1373.
[59]
[60] Testimony of Dr. T. Van Hoomissen, Tr. 1423 – 1426 and 1458.
[61]
[62] Ex. 101, letter E. Oelker February 2, 2005.
[63] See e.g. Ex. 20. (received for illustrative purposes only)
[64] Testimony of Michael Fiedler, Tr. 105, 144-45; Testimony of R. Perry, Tr. 512 -516.
[65]
[66] Testimony of W. Bierman, Tr. 1352 – 1353. The DLI, contrary to industry practice, includes the front steering axle when it counts axles. Thus, a “three axle” truck is what the industry calls a tandem dump, and a “four axle” truck is what the industry calls a “tri-axle.” Testimony of C. Donovan, Tr. 911.
[67]
[68]
[69]
Ex. 8 and 12; Testimony of
[70]
[71] Testimony of E. Oelker, Tr. 27; Ex. 7; Testimony of Dr. T. Van Hoomissen, Tr. 1408 and 1448 - 1449. The surveys used to determine the TRR are in Exhibit 101, section 1.
[72]
[73] Ex. 12, p. 2; Testimony of Dr. T. Van Hoomissen, Tr. 1379 – 1380.
[74]
[75] Testimony of Dr. T. Van Hoomissen, Tr. 1406 – 1407.
[76] Ex. 15.
[77] Testimony of W. Bierman, Tr.1352 - 1354; Exs. 6 and 15.
[78] Ex. 15.
[79]
[80]
[81]
[82]
[83]
[84]
[85]
[86] Ex. 101, section 2.
[87] Ex. 101, sections 3, 4 5 and 6.
[88] Ex. 101. section 7
[89]
[90] Ex. 101, section 8.
[91] Ex. 107, 108.
[92]
[93] Ex. 101, section 6.
[94] Ex. 101, section 11.
[95] Ex. 101, section 15.
[96] Ex. 101, section 14.
[97] See Statement of Issues above.
[98] Dr. Frank Martin reviewed exhibits 1 – 16; Ex. 17 (excluding introductory pages of attorney calculations, Tr. 17); Testimony of Dr. F. Martin, Tr. 703 – 707; Ex. 19, Curriculum Vitae of Dr. F. Martin.
[99] Testimony of Dr. F. Martin, Tr. 744.
[100]
[101]
[102]
[103]
[104]
[105]
[106]
[107] Testimony of Dr. T. Van Hoomissen, Tr. 1374 – 1375.
[108]
[109] Testimony of Dr. T. Van Hoomissen, Tr. 1371 – 1372. The Minnesota Department of Administration’s April 1991 Study notes that the United States Department of Labor, Wage and Hour Division, uses the voluntary submission of data for wage determinations because a statistical study would be prohibitively expensive or impossible to obtain. Ex. 102, p. 82.
[110]
[111] Testimony of M. Fiedler, Tr. 154-71; Testimony of R. Perry, Tr. 520-32; Testimony of D. Vinge-Sorenson, Tr. 811-24; Testimony of C. Donovan, Tr. 917-24.
[112]
[113] Minn. R. 5200.1106, subp.7.B.
[114] Prime contractors sometime provide their own equipment to other prime contractors. Testimony of D. Vinge-Sorenson, Tr. 1223.
[115] Testimony of R. Perry, Tr. 522.
[116] Testimony of R. Perry, Tr. 585, 592; Testimony of C. Donovan, Tr. 1001.
[117] Testimony of M. Fielder, Tr. at 159; Testimony of D. Vinge-Sorenson, Tr. at 825 – 826; Testimony of David LaBorde, Tr. 1471.
[118] Testimony of R. Perry, Tr. 647.
[119]
[120]
[121] Testimony of M. Fiedler, Tr. 147- 148; Testimony of R. Perry. Tr. 517; Testimony of D.Vinge-Sorensen, Tr. 798- 799; Testimony of C. Donovan, Tr. 913 – 914.
[122]
[123]
[124] Testimony of E. Oelker, Tr. 63 – 64.
[125] Ex. 101, section 7 and 8.
[126] Testimony of W. Bierman, Tr. 1347 – 1350; Ex. 101, section 7 and 8; Testimony of E. Oelker, Tr. 62 – 65.
[127] Testimony of E. Oelker, Tr. 1097.
[128] Ex. 115.
[129] Ex. 101, sec. 7.
[130] Ex. 121.
[131] Ex. 101, sec.7.
[132] Ex. 115.
[133] Ex. 121.
[134] Ex. 101, sec. 7.
[135] Ex. 115.
[136] Ex. 101, sec. 7.
[137] Ex. 121.
[138] Ex. 101, sec. 7.
[139] Ex. 121.
[140] Ex. 101, sec. 7.
[141] Ex. 121.
[142] Ex. 115.
[143] Ex. 101, sec. 7.
[144] Ex. 121.
[145] Ex. 121.
[147] Issue 8 above.
[148]
[149] Testimony of M Fielder, Tr. 209; Testimony of R. Perry, Tr. 553 – 554.
[150]
[151]
Testimony of M. Fielder, Tr. 213 – 214;
Testimony of R. Perry,
[152] Testimony of M. Fielder, Tr. 269.
[153]
[154] Testimony of R. Perry, Tr. 554.
[155] Testimony of M. Fielder, Tr. 216; Testimony of R. Perry, Tr. 679 – 680.
[156] Testimony of R. Perry at 539.
[157] Testimony of R.
[158] Testimony of C. Donovan, TR. 1022 – 1033.
[159] Minn. R. 1400.7300, subp. 5. The burden of proof analysis does not apply to legal issues.
[160]
[161]
[162]
[163] Minn. Stat. § 177.42, subd. 6.
[164]
[165] Any Findings and Conclusions made in this Memorandum are adopted as such.
[166] The federal prevailing wage statute, the Davis Bacon Act, also requires the U.S. Department of Labor to “determine” rates. Ex. 120, p. 78 – 85. The federal statute does not indicate how the Department should obtain the necessary data. 40 U.S.C. § 402 provides
All laborers and mechanics employed by contractors or
subcontractors in the construction, alteration, or repair, including painting
and decorating, of projects, buildings, and works which are financially
assisted through the Federal funds authorized under this Act, shall be paid
wages at rates not less than those prevailing on similar construction in the
locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40
U.S.C. 276a —276a–5).
Many states have mini Davis-Bacon Acts. Ex. 102, p. 17 – 22. The states have adopted a variety of methods
to determine wage rates.
[167]
[168] Testimony of D. Vinge-Sorenson, Tr. 1185.
[169]
[170] Testimony of Dr. F. Martin, Tr. 714.
[171] Testimony of Dr. F. Martin, Tr. 721.
[172] See e.g. 7 U.S.C. § 471 (Statistics and estimates of grades and staple length of cotton).
[173] 7 CFR 3600 et. seq.
[174] 40 U.S.C. § 276; 29 CFR Parts 1, 3, 4, and 7. Additional guidance for Wage and Hour staff is also published in the Davis-Bacon, Construction Wage Determinations Manual of Operations.
[175] The process that has been used by the Wage and Hour Division is described in Ex. 102, p. 82 – 93 and in a U.S. Department of Labor, Office of Inspector General Report, Inaccurate Data Were Frequently Used in Wage Determinations Made under the Davis-Bacon Act. Final Report No. 04-97-013-04-420 dated March 10, 1997. In response to criticisms that the data gather by Wage and Hour was not statistically valid, the Division defended its methods as follows:
With respect to your first recommendation, we cannot concur – at least at this time – that a viable long-term approach to conducting Davis-Bacon surveys must include a process to select survey participants using statistical or other independent means. As you know, we do not mean to “rule out” such an approach as we are currently examining different long-term approaches and at least one possible option would use the Bureau of Labor Statistics’ (BLS) survey data where participants are selection through statistical sampling. We do not believe, however, that the serious problems you found regarding the accuracy of the data submitted by survey participants relates only to the universe (rather than sample) survey approach currently used for the Davis-Bacon survey program. Whether conducting a universe survey (like the current process) or a sample survey (like BLS surveys), one must start with a comprehensive and reliable definition of the universe of possible respondents. And either survey approach must have effective means to validate the accuracy of information provided by survey respondents; as your draft report points out, there are many possible reasons that survey responses could be inaccurate ranging from purposeful misreporting to simple misunderstanding of the information being sought. These essential issues must be addressed by any survey approach – but there is nothing that we see which makes a sample survey inherently preferable to a universe survey approach. A universe survey gives all potentially interested parties an opportunity to participate and – provided adequate verification mechanism (needed in any case) – could produce more accurate results (with no sampling error) provided there is adequate, representative response. On the other hand, sample surveys are likely to be somewhat less expensive and time-consuming than universe surveys (sic) It is clear, however, that the data reliability issues identified in the draft report must be addressed regardless of the survey approach utilized, and we do not believe that statistical sampling – in and of itself – will contribute to improving the accuracy of wage data submitted to and used by the Department.
Letter from Wage and Hour attached to the March 10, 1997 Inspector General’s Report.
[176]Testimony of Dr. T. Van Hoomissen, Tr. 1404.
[177]
Other
[178] Testimony of W. Bierman, Tr. 1347 – 1350; Testimony of E. Oelker, Tr. 1348.
[179] The fact that the DLI is authorized to conduct a separate survey for broker fees and to set a presumptively valid rate does not, however, mean that the DLI’s decision not to do so invalidates the truck rental rates. The rule gives little guidance to the DLI in how to determine the truck broker fee except that it must be determined by annual survey. The makeup of the survey, the entities to which the survey is sent, and how the broker fee is calculated based on the survey, is left to the discretion of the DLI.
[180] Testimony of Dr. F. Martin, Tr. 710-12.
[181]
[182]
[183] Testimony of R. Perry, Tr. 553 – 555; Testimony of M. Fielder, Tr. 337 – 340.
[184] Testimony of R. Perry, Tr. 539 – 540 and 613 – 615.