Department of Labor & Industry v. Ganc

729 A.2d 668, 1999 Pa. Commw. LEXIS 386
CourtCommonwealth Court of Pennsylvania
DecidedMay 13, 1999
StatusPublished
Cited by1 cases

This text of 729 A.2d 668 (Department of Labor & Industry v. Ganc) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Labor & Industry v. Ganc, 729 A.2d 668, 1999 Pa. Commw. LEXIS 386 (Pa. Ct. App. 1999).

Opinion

NARICK, Senior Judge.

The issue on appeal is whether the Pennsylvania Prevailing Wage Appeals Board (Board) correctly interpreted the Pennsylvania Prevailing Wage Act (Act)1 as requiring the Bureau of Labor Law Compliance, Department of Labor and Industry (Department) to hold an “appropriate hearing” whenever a workman files a protest alleging he has been underpaid in violation of the Act. We hold the Board correctly interpreted the Act as requiring the Department hold an “appropriate hearing” whenever a workman files a protest under the Act. Therefore, the decision and order of the Board is affirmed.

The relevant facts in this case are as follows. In 1994, Vincent Gane (Gane) was a resident of Delaware. Delcard Associated, Inc. (Delcard)2 was a contractor located in Delaware. Delcard employed Gane as a sheet-metal worker apprentice on three projects located in Pennsylvania. The three projects were public works within the meaning of the Act. Delcard did not employ Gane pursuant to an apprentice program approved by the Pennsylvania Apprenticeship and Training Council (PATC), nor was Gane a registered apprentice within Pennsylvania. Gane did not receive the journeyman prevailing minimum wage rate, as determined by the Department.

On or about December 30, 1994 Gane filed a wage protest with the Department in the form of a prevailing wage questionnaire. The Department did not hold a hearing with regard to Gánc’s protest. On or about October 18, 1995, a meeting was held between the Director of the Department’s Prevailing Wage Division (Division)(now the Bureau of Labor Law Compliance), Delcard and two Bureau inspectors. On October 19, 1995, [670]*670the Division Director sent a letter to Delcard requesting that Delcard register its apprentices with PATC'.3

Gane wrote to the Department on November 22, 1995, inquiring as to the status of his case. The Department did not respond to this inquiry.

On June 19, 1996, Gane, through his counsel, wrote to the Department to request a hearing on his protest. In response, on August 21,1996, the Director of the Division wrote a letter to Ganc’s counsel stating the Department elected not to pursue Ganc’s protest because the Department felt that the situation was adequately addressed by Delcard.

On September 27, 1996 the Board received Ganc’s appeal from the August 21, 1996 letter by the Director of the Division. The Board appointed a hearing officer and the parties stipulated to the above facts. After hearing arguments the hearing officer distributed a proposed decision. Both parties filed exceptions to the proposed decision. After hearing oral arguments the Board held that the Department committed an error of law when it refused to fully investigate and hold a hearing on the wage protest filed by Gane. The Department filed a Petition for Review with this Court.

On Appeal4, the Department argues that the Act does not require the Department to hold a hearing for every protest filed by a workman under the Act. We disagree.

The Secretary of Labor and Industry is ■ charged with investigating allegations of wage rate violations when a worker files a charge alleging that he has not been paid the prevailing rate. The relevant language of the Act provides:

Whenever any workman employed upon public work shall have filed a timely protest objecting that he has been paid less than prevailing wages as required by this act, it shall be the duty of and the secretary shall forthwith investigate the matter and determine whether or not there has been a failure to pay the prevailing wage and whether any such failure was intentional or otherwise. In any such investigation, the secretary shall provide for an appropriate hearing upon due notice to interested parties, including the workmen, the employer and the respective representative, if any.

43 P.S. § 165-ll(c) (emphasis added).

The Board has interpreted this language to mean the Department has a mandatory duty to investigate all timely protest filed by workmen alleging that they have been paid less than the prevailing wage as required by the Act. This investigation must include a hearing, the nature of which is within the discretion of the Department to determine.

As this case involves the interpretation of the Act by the agency charged with administering the Act, the interpretation must be given great weight and should not be disregarded unless clearly erroneous. Pennsylvania Association of Rehabilitation Facilities v. Foster, 154 Pa.Cmwlth. 555, 624 A.2d 270 (1993).

When construing a statute, the starting point is the language therein. Absent any language to the contrary, a statute’s plain meaning must prevail. O’Boyles Ice Cream Island v. Commonwealth, 146 Pa.Cmwlth. 374, 605 A.2d 1301 (1992). The key language to be construed [671]*671in the case at bar is “the secretary shall provide for an appropriate hearing....” 43 P.S. § 165-ll(c). Although the word “shall” has sometimes been interpreted as directory, upon analysis of the use of the word in the context of the Act as a whole, we interpret the word “shall” in this case as mandatory.

Recent case law establishes that the word “shall” is to be construed as mandatory unless the statutory language is ambiguous. Oberneder v. Link Computer Corp., 548 Pa. 201, 696 A.2d 148 (1997). Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989).

The language in the Act is not ambiguous. Section 11(c) is but one part of a procedure detailing how the Department is to address protest and violations under the Act. Section 11(c) calls for an investigation and hearing. Both Section 11(d) and Section 11(e) state, “In the event that the secretary shall determine, after notice and hearing as required by this section....” (Emphasis added). The use of the word “required” in conjunction with “hearing” in each of these subsections leaves little doubt that the legislature did not intend hearings to be merely optional.

In arguing for discretion as to whether the Department must conduct a hearing the Department makes the following arguments.

First, the Department argues that the word “appropriate” in the context of the Act is indicative of discretion. The Department would read the sentence “the secretary shall provide for an appropriate hearing” to actually mean, “the secretary shall provide for a hearing when appropriate.” We disagree with the Department’s interpretation of the Act. The word “appropriate” modifies the word “hearing”, not the word “provide.” The discretion that the legislature provides to the Department is to determine what type of hearing is appropriate, not whether any hearing is required at all.

Second, the Department argues that the Board’s interpretation of the statute elevates the status of the complaining worker to that of a party allowing the worker to dictate how the Department conducts its investigation and force the Department to bring charges against the employer. This argument misinterprets the decision of the Board.

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729 A.2d 668, 1999 Pa. Commw. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-labor-industry-v-ganc-pacommwct-1999.