Construction Industries v. Commissioner of Labor & Industries

406 Mass. 162
CourtMassachusetts Supreme Judicial Court
DecidedNovember 22, 1989
StatusPublished
Cited by11 cases

This text of 406 Mass. 162 (Construction Industries v. Commissioner of Labor & Industries) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Construction Industries v. Commissioner of Labor & Industries, 406 Mass. 162 (Mass. 1989).

Opinion

Nolan, J.

Plaintiffs, two trade associations and four truck owners, commenced this action in the Superior Court against the Commissioner of Labor and Industries (commissioner). The plaintiffs sought a judgment declaring that the commissioner does not have authority under G. L. c. 149, §§ 26-27F (1988 ed.), to set wages for truck drivers who deliver bituminous concrete to public works construction sites. A Superior Court judge entered summary judgment declaring that the statute was constitutional, but the judge declined to determine the extent of the commissioner’s authority under the statute. The plaintiffs appealed and we granted their application for direct appellate review. We modify the judgment of the Superior Court and, as modified, affirm.

The essential facts are not in dispute. Bituminous concrete is a mixture of sand and stone held together by a very heavy crude oil which acts as a glue. Bituminous concrete is often referred to as asphalt. It ranges from coarse to fine depending on the size of the stone used in its manufacture. Several layers of bituminous concrete are used in the construction of roads and highways. These range from a very coarse consis[164]*164tency in the lower levels to a fine layer on top. Sometimes an old road surface is ripped up, transported to the manufacturing plant, reprocessed, and then reapplied at the site.

The manufacture of bituminous concrete takes place at either a stationary plant, from which it is then transported to the construction site or, in some cases, at portable on-site plants. In either case, the bituminous concrete is hauled by truck from the site of manufacture to the location where it is laid down. The role of the truck driver is the same whether the bituminous concrete is manufactured on the site or at a stationary plant. After loading the truck, the driver proceeds to the application site. The driver then backs the truck up to a device called a spreader and dumps the concrete into the spreader’s hopper. The spreader is used to lay the concrete down evenly. A “roller” follows the spreader and compacts the layer of bituminous concrete.

It usually takes several “lifts” to empty a truck. After dumping the first load into the spreader, the driver pulls the truck forward and waits for the spreader to empty out. Sometimes the spreader simply pushes the truck forward as it lays down the bituminous concrete.2 The truck driver continues to dump concrete into the spreader until his truck is empty. He then leaves the site, fills the truck again, returns to the site, and repeats the entire process. During the dumping and spreading procedure, the truck driver takes directions from the spreader operator and the foreman. It takes from five to fifteen minutes to complete the process and empty the truck.

Under G. L. c. 149, §§ 26 and 27, the commissioner is required to set the hourly wage which must be paid to “mechanics and apprentices, teamsters, chauffeurs and laborers” employed on public works. Since at least 1976, the commissioner has considered those truckers who haul bituminous concrete to the site of public works projects and aid in the [165]*165application of that concrete, to be teamsters employed on those sites. Nevertheless, between 1976 and 1986, the commissioner rarely resorted to criminal enforcement of the wage rates for bituminous concrete truck drivers.

In 1986, the commissioner caused a criminal complaint to issue against the plaintiff Lecca Trucking, Inc., alleging a failure to pay the posted wage rate to truckers hauling bituminous concrete to a public works project. The commissioner filed applications for show cause orders against the plaintiffs J.R. Philie and J.E. Boucher for failure to produce the payroll records of truck drivers transporting bituminous concrete to a public works project. The plaintiffs Construction Industries of Massachusetts and the Massachusetts Asphalt Paving Contractors Association are nonprofit corporations which represent contractors involved in the manufacture, transportation, and installation of bituminous concrete. Collectively, the plaintiffs filed suit in Superior Court seeking to enjoin the pending and threatened criminal prosecutions. The plaintiffs also sought a judgment declaring that the commissioner had no authority to set wages for truck drivers transporting bituminous concrete and, if the commissioner did have such authority, that the statute giving him the authority was unconstitutional as an unlawful delegation of legislative power. The plaintiffs also argued that by setting the posted wage rates, the commissioner adopted a “regulation" within the meaning of G. L. c. 30A, § 2 (1988 ed.), and that, due to the absence of a public hearing, the posted wage rates were invalid.

The Superior Court entered a temporary restraining order, and later a preliminary injunction, enjoining the criminal proceedings against the plaintiffs. The parties then entered into a statement of agreed facts and made cross-motions for summary judgment. The judge entered a judgment declaring that G. L. c. 149, §§ 27 and 27F, did not constitute an unlawful delegation of legislative power and that the commissioner’s adoption of the wage rates was not the promulgation of a regulation requiring observance of the procedures described in G. L. c. 30A. The judge declined, however, to de[166]*166termine whether the commissioner had authority to set the wages for truckers hauling bituminous concrete because plaintiffs had not availed themselves of the administrative review procedure created by G. L. c. 149, § 27A. Finally, the judge vacated his preliminary order granting injunctive relief to the plaintiffs.

1. Procedural adequacy of this appeal. General Laws c. 149, § 27A, provides an administrative mechanism for review of wage determination and classification of employment by the commissioner.3 None of the plaintiffs in this case availed itself of that process. Instead, the plaintiffs awaited the filing of criminal charges and then brought an action for declaratory and injunctive relief. The judge concluded that an administrative appeal pursuant to § 27A was the appropriate vehicle for review of the commissioner’s decision that bituminous concrete truck drivers were “teamsters” within the meaning of G. L. c. 149, §§ 26 and 27. Thus, the judge declined to enter a declaratory judgment.

Generally, this court will decline to reach the merits of a case when an aggrieved party does not utilize the administrative procedures available to him. See Assuncao’s Case, 372 Mass. 6, 8-10 (1977). While the declaratory judgment statute was meant to create a procedure for the resolution of controversies, “[a] proceeding for declaratory relief in itself does not operate to suspend the ordinary requirement that a plaintiff exhaust his administrative remedies before seeking judicial relief.” East Chop Tennis Club v. Massachusetts [167]*167Comm’n Against Discrimination, 364 Mass. 444, 450 (1973). In this case, the parties urge us to reach the merits. The issues have been fully briefed and argued. The commissioner concedes that a § 27A appeal would be futile. Since the parties have entered into an extensive stipulation of facts, we are presented with a question of statutory interpretation. Moreover, the plaintiffs are essentially challenging the authority of the commissioner under the enabling statute and the resolution of this issue is in the public interest. We con-elude that declaratory relief is appropriate. See Ciszewski v. Industrial Accident Bd., 367 Mass.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Donis v. American Waste Services, LLC
125 N.E.3d 759 (Massachusetts Appeals Court, 2019)
Massachusetts Ass'n of Health Plans v. Murphy
27 Mass. L. Rptr. 68 (Massachusetts Superior Court, 2010)
Cox v. T.S. Truck Services, Inc.
19 Mass. L. Rptr. 695 (Massachusetts Superior Court, 2005)
Bradley's Case
778 N.E.2d 11 (Massachusetts Appeals Court, 2002)
Superior Asphalt & Concrete Co. v. Department of Labor
929 P.2d 1120 (Court of Appeals of Washington, 1997)
Lyman v. Weld
6 Mass. L. Rptr. 59 (Massachusetts Superior Court, 1996)
McKenna v. Contributory Retirement Appeal Board
1 Mass. L. Rptr. 271 (Massachusetts Superior Court, 1993)
Sparks & Wiewel Construction Co. v. Martin
620 N.E.2d 533 (Appellate Court of Illinois, 1993)
Constr. Indus. of Mass. v. COMMR. OF LABOR & INDUS.
546 N.E.2d 367 (Massachusetts Supreme Judicial Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
406 Mass. 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/construction-industries-v-commissioner-of-labor-industries-mass-1989.