Coats-Sellers v. State ex rel. Department of Transportation

147 P.3d 946, 209 Or. App. 281, 2006 Ore. App. LEXIS 1783
CourtCourt of Appeals of Oregon
DecidedNovember 15, 2006
Docket97CV0285MS; A127299
StatusPublished
Cited by1 cases

This text of 147 P.3d 946 (Coats-Sellers v. State ex rel. Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coats-Sellers v. State ex rel. Department of Transportation, 147 P.3d 946, 209 Or. App. 281, 2006 Ore. App. LEXIS 1783 (Or. Ct. App. 2006).

Opinion

LANDAU, P. J.

At issue in this case is whether plaintiff, a road construction contractor, is obligated to pay certain of its workers prevailing wages. The case is before us for the third time, and the procedural journey by which it arrives is a convoluted one. But, at bottom, the issue turns on whether the Bureau of Labor and Industries (BOLI) permissibly interpreted its own prevailing wage rule in reaching the conclusion that plaintiff is obligated to pay the workers prevailing wages. The trial court concluded that BOLI erred and granted summary judgment for plaintiff. We disagree with the trial court and reverse and remand.

The relevant facts are not in dispute. In March 1997, plaintiff contracted with the Oregon Department of Transportation (ODOT) to pave a portion of Highway 20 in Deschutes County.1 The contract incorporated administrative rules promulgated by BOLI pertaining to the payment of prevailing wage rates. Those rules were promulgated to implement former ORS 279.350(1) (1995), which provided, in part, that “[t]he hourly rate of wage to be paid by any contractor or subcontractor to workers upon all public works shall be not less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality where such labor is performed.”2 The rules themselves defined the “site of work” and provided, in part:

“(b) Except as provided in paragraph (c) of this section * * * borrow pits * * * and similar facilities, are part of the site of work provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them. Such facilities which are established by a supplier of materials for the [284]*284project after the opening of bids shall be deemed to be dedicated exclusively to the performance of the contract or project.
“(c) * * * [Bjorrow pits * * * and similar facilities of a commercial supplier or materialman which are established by a supplier of materials for the project before opening of bids and not on the project site, are not included in the site of work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a contract or project.”

Former OAR 839-016-0004(19) (Sept 1,1996).3

In May 1997, BOLI notified plaintiff that he was in violation of the prevailing wage rules insofar as he was not paying prevailing wages to employees working at a rock quarry or “borrow pit” located approximately 8 to 10 miles from the road construction site. Eventually, ODOT withheld a progress payment on the contract on that same basis. Plaintiff then initiated this breach of contract action against ODOT and BOLI. ODOT counterclaimed, alleging that plaintiff had breached the contract by failing to pay the prevailing wage to the relevant employees. The trial court granted summary judgment to plaintiff on the ground that, under OAR 839-016-0004(19)(c), the borrow pit was not a “site of work.”

ODOT and BOLI appealed. In Coats v. ODOT, 170 Or App 32, 11 P3d 258 (2000), vac’d and rem’d, 334 Or 587, 54 P3d 610 (2002), we held that the relevant BOLI rule was inconsistent with its authorizing statute, former ORS 279.350(1); that, under a correct interpretation of the rule, plaintiff was not required to pay prevailing wages to the borrow pit employees; and that, accordingly, the trial court had not erred in granting summary judgment to plaintiff.

ODOT and BOLI obtained review in the Supreme Court. The court vacated our decision and remanded the case for further proceedings, concluding that the validity of BOLI’s rules was not properly at issue. Coats v. ODOT, 334 Or 587, 594-97, 54 P3d 610 (2002). The court explained that, [285]*285instead, plaintiff had agreed to the rules as terms of his contract with ODOT and that, accordingly, the “only relevant question” was how BOLI’s rules applied as contract terms. Id. at 597.

On remand, we again considered whether plaintiff was required to pay prevailing wages by reason of the borrow pit constituting a “site of work” for the purpose of OAR, 839-016-0004(19). We first considered whether the borrow pit was subject to the exception from the definition of “site of work” established in OAR 839-016-0004(19)(c), providing, in part, that borrow pits are not included in the site of work if they are established before the opening of bids for a project. We concluded that BOLI’s interpretation of paragraph (19)(c) of the rule as incorporated into the contract was plausible and therefore entitled to deference under Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 881 P2d 119 (1994). Coats v. ODOT, 188 Or App 147, 150-53, 71 P3d 172 (2003), rev den, 336 Or 509 (2004). We further concluded that, under that interpretation, the borrow pit was not established before the opening of bids on the project, that it therefore was not subject to the exception in OAR 839-016-0004(19)(c) for “sites of work,” and that the trial court had erred in granting summary judgment to plaintiff based on a contrary conclusion. Id.

However, plaintiffs summary judgment motion had also relied on the portion of OAR 839-016-0004(19)(b) that provided that, to be considered a part of the work site, a borrow pit must be “dedicated exclusively, or nearly so, to the performance of the contract or project” and must be “so located in proximity to the actual construction location that it would be reasonable to include them.” Because the trial court had not reached the question whether the borrow pit met those affirmative criteria for work sites established in that portion of the rule, we reversed and remanded for it to do so in the first instance. Id. at 153.

On remand, plaintiff again moved for summary judgment, and ODOT and BOLI moved for partial summary judgment. Plaintiff, arguing that the borrow pit was not in sufficient proximity to the work site for the purpose of OAR [286]*286839-016-0004(19)(b), relied in part on materials demonstrating that, although the distance from the pit to the nearest point on the project was eight miles, the distances from the borrow pit to the west and east ends of the highway construction project were, respectively, 11.8 and 16.4 miles.

In response, ODOT and BOLI relied in part on their original submissions in the case, including the affidavits of the operations manager of the borrow pit and of an ODOT labor compliance officer and a BOLI compliance specialist. In particular, the BOLI compliance specialist, Grabe, had averred that, to determine the proximity of a borrow pit to a work site, OAR 839-016-0004(19)(b) requires a case-by-case examination of the facts, including the distance between the pit and the site, when the pit was established, the location or proximity of other potential sources of aggregate, and the timing of permits. Grabe also had averred that, based on the facts presented in this case, the rule required plaintiff to pay prevailing wages.

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Cite This Page — Counsel Stack

Bluebook (online)
147 P.3d 946, 209 Or. App. 281, 2006 Ore. App. LEXIS 1783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coats-sellers-v-state-ex-rel-department-of-transportation-orctapp-2006.