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OAH 8-3001-17706-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF TRANSPORTATION
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In
the Matter of the |
SIXTH PREHEARING
ORDER ON MOTION FOR SUMMARY
CERTIFICATION TO THE AGENCY |
The above-entitled matter came before
Administrative Law Judge Eric L. Lipman upon the Minnesota Department of Transportation’s
March 23, 2009 Motion for Certification (“MnDOT”).
Thomas
R. Revnew and Michael L. McCain, Seaton, Beck & Peters, P.A., appeared on
behalf of Comstock Construction, Inc. (“Comstock”). Michael A. Sindt, Assistant Attorney General,
appeared on behalf of MnDOT. Steven M.
Gunn, Deputy Attorney General, appeared on behalf of Minnesota Department of
Labor and Industry (“DOLI”).
Based
upon all of the files, records, and proceedings herein, and for the reasons set
forth in the accompanying Memorandum,
IT IS HEREBY ORDERED THAT:
1.
DOLI’s Motion for Certification is DENIED.
Dated: April 20, 2009
_/s/ Eric L. Lipman_______________
ERIC L. LIPMAN
Administrative Law Judge
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
On or
about August 17, 2000, Comstock and MnDOT entered into a contract that provided
for additions to, and remodeling of, MnDOT’s Detroit Lakes Regional
Headquarters. The contract required
Comstock to provide employees who worked on the project wages and benefits that
were consistent with Minn. Stat. §§ 177.41 - 177.44.
On
August 10, 2006, MnDOT issued a determination as to the amount of prevailing
wages owed by Comstock. It claims that
Comstock owes $111,428.11 in additional wages for prevailing wage violations.[1]
On
October 10, 2006, Comstock requested a contested case hearing as to these
claims.[2] The Notice and Order for Hearing was issued
by MnDOT on December 4, 2006.[3]
By way of papers
filed on September 21, 2007, Comstock sought summary disposition on MnDOT
claims for additional wages. Comstock
argued that MnDOT’s claims were based upon:
(1) rights to recovery that are barred by the doctrine of laches; (2)
arbitrary and capricious government actions; (3) unauthorized rulemaking by
MnDOT or the Minnesota Department of Labor and Industry (“DOLI”) and (4)
unconstitutionally vague rules.[4]
On February
7, 2008, the undersigned recommended that the Commissioner of Transportation grant-in-part
and deny-in-part Comstock’s Motion for Summary Disposition.[5]
Thereafter, the parties filed
written exceptions to the undersigned recommendations and an oral argument was
held before Deputy Commissioner Khani Sahebjam, of the Minnesota Department of
Transportation.
On October 10, 2008, Deputy
Commissioner Sahebjam rejected the
February 7, 2008 recommendations and remanded this matter to OAH for additional
proceedings. The remand order included
the directive to develop the hearing record “on the following issues”:
(1) “Does MN/DOT have legal authority to enforce the prevailing wage
requirements for the Detroit Lakes Regional Headquarters, Construction Project
Number OOTZ1791B;”
(2) “Based upon consideration of all the
evidence in the record and the testimony of experts and other witnesses, what
tasks do the disputed Master Job Classifications encompass and how should the
workers who performed the tasks of installing waterproofing, providing tools to
Cement Masons, helping painters, typing rebar, erecting chain link fences and
installing Venetian blinds be classified;” and,
(3) “Based on the classifications
determined, how much if any, in back wages does Comstock owe its employees”?[6]
At a December 18, 2008 telephone Prehearing Conference, the parties discussed the scheduling of proceedings on Comstock’s second motion for summary disposition. Briefing on this motion occurred in early 2009 and oral argument on the motions was held on February 9, 2009.
By way of a Fifth Pre-Hearing Order issued on February 25, 2009, the undersigned denied Comstock’s second motion for Summary Disposition and entered a set of dates for the completion of filings in advance of an evidentiary hearing in June of 2009. As part of the Memorandum to this Order, the Administrative Law Judge observed:
During
the oral argument on the instant motions, it was suggested by counsel for MnDOT
that the range of issues to be addressed at the upcoming evidentiary hearing
may be broader than the three listed in the Deputy Commissioner’s remand Order
of October 10, 2008. Given the
Commissioner’s description of “the following issues” in his Order, the
Administrative Law Judge is doubtful that the instructions for OAH on remand
are broader than the listed items. If
MnDOT is of a different view, the Administrative Law Judge urges it to make an
early filing of a Motion in Liminie or a request for certification under Minn.
R. 1400.7600, so as to avoid a delay in the commencement of the evidentiary
hearing.
On March 23, 2009, this Office received MnDOT’s Motion for Certification. No other party filed responsive pleadings within the 10-working day provided by rule, or thereafter.
MEMORANDUM
Pointing to that
portion of the remand Order in which the Commissioner inquired “[b]ased
upon consideration of all the evidence in the record and the testimony of the
experts and other witnesses, what tasks do the disputed Master Job
Classification encompass,” MnDOT seeks to present evidence on the proper
constriction of a wider range of job classifications than those associated with
“installing
waterproofing, providing tools to Cement Masons, helping painters, typing
rebar, erecting chain link fences [or] installing Venetian blinds.”[7]
Minnesota Rule 1400.7600 sets out the six factors
to be weighed in determining whether a motion should be certified. Those
factors are:
(A)
whether the motion involves a
controlling question of law as to which there is substantial ground for a
difference of opinion; or
(B)
whether a final determination
by the agency on the motion would materially advance the ultimate termination
of the hearing; or
(C)
whether or not the delay
between the ruling and the motion to certify would adversely affect the
prevailing party; or
(D)
whether to wait until after
the hearing would render the matter moot and impossible for the agency to
reverse or for a reversal to have any meaning; or
(E)
whether it is necessary to
promote the development of the full record and avoid remanding; or
(F)
whether the issues are solely
within the expertise of the agency.
Urging that it be permitted to introduce evidence on a wider range of classifications than are referenced on page eight of the remand Order, MnDOT argues:
This
language allows for a hearing process where the parties may present testimony
as to all the various tasks performed by Comstock employees in the construction
of Detroit Lakes Regional Headquarters. The purpose of the hearing is to
establish a complete record that analyzes the tasks performed by each
classification assignment in dispute and what back wages, if any, are owed. The tasks
performed on the project are not limited to those listed in Section 2B of the
Deputy Commissioner’s Order of October 10, 2008.
The list of tasks that are currently in the record exceeds the tasks listed in the order. Also attached is the Notice of Hearing. These documents demonstrate that OCIC intend to enforce the State Prevailing Wage Act on all disputed aspects of the Detroit Lakes Regional Headquarters project.[8]
The Administrative Law Judge
agrees. To the extent that evidence as
to the scope of disputed classifications which do not involve “installing
waterproofing, providing tools to Cement Masons, helping painters, typing
rebar, erecting chain link fences [or] installing Venetian blinds,” is
necessary to answer the Commissioner’s third inquiry – namely, “how much if
any, in back wages does Comstock owe its employees” – such evidence is proper
for inclusion into the evidentiary hearing record.
Yet, because it is clear from the
Commissioner’s remand Order that a complete record as to what, if any, amounts
in back wages Comstock owes its employees, is requested in this matter,
certification of the question that MnDOT presents in its March 23, 2009 Motion
is not warranted.
E. L. L.
[1] In the Matter of the
[2] Notice of and Order for Hearing, at 3.
[3]
[4] Recommendation on Motion for Summary Disposition, supra, at 1 and 10.
[5]
[6] In the Matter of the
[7] Compare, In the Matter of the
[8] DOLI Request for Certification, at 2 (citations omitted).