Mason Contractors Ass'n v. Labor & Industrial Relations Commission

996 S.W.2d 789, 1999 Mo. App. LEXIS 995
CourtMissouri Court of Appeals
DecidedJuly 27, 1999
DocketNo. 75056
StatusPublished

This text of 996 S.W.2d 789 (Mason Contractors Ass'n v. Labor & Industrial Relations Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mason Contractors Ass'n v. Labor & Industrial Relations Commission, 996 S.W.2d 789, 1999 Mo. App. LEXIS 995 (Mo. Ct. App. 1999).

Opinion

CLIFFORD H. AHRENS, Judge.

Mason Contractors Association (“Mason”) appeals from a judgment of the Circuit Court of St. Louis County affirming the Labor and Industrial Relations Commission’s (“Commission”) decision to overrule Mason’s objection to Annual Wage Order No. 4. Operating Engineers Local No. 513 (“O.E.”) intervened in the proceedings below in support of the wage order. Mason argues the Commission erred in finding that the operation of masonry forklifts was a task best suited for operating engineers, not laborers. We affirm.

On March 7, 1997, the Missouri Division of Labor Standards promulgated Annual Wage Order No. 4.1 On March 27, 1997, Mason filed an objection contesting this order on the grounds that the occupational title definitions of semi-skilled laborer and operating engineer were incorrect. This objection was filed pursuant to 8 C.S.R. 30-3.060(6) (1995),2 which reads (in part):

Through an objection to a wage order, an interested party may assert that any given description of work, as stated within this rule, does not apply to a specific occupational title(s) and that a different work description should apply to that occupational title(s). The interested party shall have the' burden of proving by a preponderance of the evidence the inapplicability of the description of work within that particular occupational title, but shall be afforded the opportunity to do so in a hearing on an objection to the wage order before the Labor and Industrial Relations Commission.

8 C.S.R. 30-3.060 provides guidelines for determining which jobs belong in which categories. The occupational title of laborer “consists of providing manual labor.” 8 C.S.R. 30-3.060(8)(K). For example, a “first semiskill laborer” may handle certain materials “using a forklift (walk behind or similar types),” but not a masonry forklift. 8 C.S.R. 30-3.060(8)(K)(l)(B). In contrast, operating engineers “operate, monitor and control, repair, modify, assemble, erect, oil, [and] service each or all electrically, ... electronically, hydraulically or ... power-operated equipment.” 8 C.S.R. 3.060(8)(0) For example, a “group III-A operating engineer” is a worker who may “operate, monitor and control, repair, modify, assemble, erect, oil, [and] service each or all electrically, ... electronically, hydraulically or ... power-operated equipment set forth as a masonry forklift.” 8 C.S.R. 3.060(8)(0)(1)(D).

Mason argues that the rule should have provided that laborers, not operating engineers, should operate masonry forklifts and therefore be paid laborers’ wages. O.E. intervened, asserting that the rule was valid and those operating masonry forklifts should be paid operating engineers’ wages. On May 21, 1997, a hearing [791]*791was conducted before the Commission. Mason, O.E. and the Division of Labor Standards presented evidence. On June 11, 1997, the Commission issued an order overruling Mason’s objection and finding that Mason had not met its burden of proof. On July 10, 1997, Mason filed an appeal with the circuit court. The court entered judgment on August 19, 1998, affirming the Commission’s initial determination. Mason appeals.

We review the findings and decisions of the Commission, not the judgment of the circuit court. Branson R-IV School Dist v. Labor and Indus. Relations Comm’n, 888 S.W.2d 717, 720 (Mo.App.1994). We review the Commission’s decision to determine whether it is supported by substantial and competent evidence, constitutes an abuse of discretion, is unauthorized by law, or is arbitrary, capricious or unreasonable. Id.

On appeal, O.E. argues that the Commission’s decision should be reversed because Mason is attempting to challenge the validity of 8 C.S.R. 30-3.060 without going through the required procedures for contesting an administrative rule. This validly promulgated rule explicitly allows interested parties to object to job title descriptions in the rule by using the procedure Mason used in this case. See 8 C.S.R. 30-3.060, supra. Point denied.

O.E. also argues that this appeal should be dismissed as moot because Mason is objecting to Annual Wage Order No. 4, which expired June 8, 1998. Mason is not challenging the wage determinations in the wage order. It is instead challenging the occupational titles as they appear in the rule. Furthermore, the Commission’s decision with respect to the disputed job classifications has the effect of finally resolving the issue for purposes of res judicata and collateral estoppel. As such, the issues Mason addresses are still ripe for review and this appeal is not moot. See Central Missouri Plumbing Co. v. Plumbers Local Union 35, 908 S.W.2d 366, 371 (Mo.App.1995) (objection to the method of determining wages in an Annual Wage Order which had expired before the appeal was heard is not moot because “the issue is capable of repetition, and yet likely to evade review...”). Point denied.

In its first point on appeal, Mason argues that the Commission erred in overruling the objection to the order because its decision was not supported by substantial and competent evidence and is contrary to the overwhelming weight of the evidence. It asserts that there was insufficient evidence for the Commission to find that the operation of a masonry forklift is “work of a similar character” to work performed by other operating engineers.

Missouri’s statutes define “prevailing hourly rate of wages” as “the wages paid generally, in the locality in which the public works is being performed, to workmen engaged in work of a similar character... ” Section 290.210(5) RSMo 1994. “Locality” is defined as “the county where the physical work upon public works is being performed.” Section 290.210(3) RSMo 1994. ‘Work of a similar character” is not defined in the prevailing wage law. State v. Lee Mechanical Contractors, Inc., 938 S.W.2d 269, 271-72 (Mo. banc 1997). However, Missouri courts have held that “‘similar’ does not mean the same or identical.” City of Kennett v. Labor and Indus. Relations Comm’n, 610 S.W.2d 623, 626 (Mo. banc 1981). Rather, work is considered “of a similar character” depending on the nature or type of the public works project being performed and the character of the work actually done. Associated General Contractors v. Department of Labor and Indus. Relations, 898 S.W.2d 587, 591-92 (Mo.App.1995).

During the hearing Mason presented evidence that masonry forklifts are commonly operated by laborers. William Klaric, a mason contractor, testified that in his experience, laborers nearly always operated masonry forklifts, not operating engineers. James Boeckman of the Division of Labor Standards testified that a masonry forklift is an “essential piece of equipment” to the [792]*792performance of a masonry laborer. Mason also noted that the Commission had already found that laborers were qualified to use forklifts, albeit only “walk behind forklifts” (or similar types).

O.E.

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Related

Branson R-IV School District v. Labor & Industrial Relations Commission
888 S.W.2d 717 (Missouri Court of Appeals, 1994)
State v. Lee Mechanical Contractors, Inc.
938 S.W.2d 269 (Supreme Court of Missouri, 1997)
City of Kennett v. Labor & Industrial Relations Commission
610 S.W.2d 623 (Supreme Court of Missouri, 1981)
Central Missouri Plumbing Co. v. Plumbers Local Union 35
908 S.W.2d 366 (Missouri Court of Appeals, 1995)

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996 S.W.2d 789, 1999 Mo. App. LEXIS 995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-contractors-assn-v-labor-industrial-relations-commission-moctapp-1999.