Montana Department of Administration v. Ekanger

943 P.2d 994, 284 Mont. 151, 54 State Rptr. 821, 1997 Mont. LEXIS 165
CourtMontana Supreme Court
DecidedAugust 7, 1997
Docket96-488
StatusPublished

This text of 943 P.2d 994 (Montana Department of Administration v. Ekanger) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montana Department of Administration v. Ekanger, 943 P.2d 994, 284 Mont. 151, 54 State Rptr. 821, 1997 Mont. LEXIS 165 (Mo. 1997).

Opinions

JUSTICE LEAPHART

delivered the Opinion of the Court.

Laurie Ekanger (Ekanger), Commissioner of Labor and Industry of the State of Montana, appeals from the First Judicial District Court’s order which reversed the Department of Labor’s order awarding “heavy” and “highway” pay rates to workers constructing underground tunnels at Montana State University (MSU). We reverse the decision of the District Court and remand for determination of appropriate compensation consistent with “heavy’ and “highway’ rates under the Little Davis-Bacon Act, §§ 18-2-401 et seq., MCA.

We address the following issue on appeal:

Are the Edsall and Barnard tunnels “heavy” construction projects

under Montana’s Little Davis-Bacon Act, § 18-2-401(5), MCA?

[153]*153BACKGROUND

Montana law divides prevailing wage classifications for laborers into three categories: heavy construction, highway construction and other types of construction (i.e., building). Wages for heavy and highway workers are set at one rate in Montana and wages for “other” (building) workers are set at a second rate. Sections 18-2-401(5) and (7), MCA, provide:

(5) “Heavy and highway construction wage rates” means wage rates, including fringe benefits for health and welfare and pension contributions, that meet the requirements of the Employee Retirement Income Security Act of 1974 and other bona fide programs approved by the United States department of labor and travel allowance that are determined and established statewide for heavy and highway construction projects, such as alteration or repair of roads, streets, highways, alleys, runways, trails, parking areas, or utility rights-of-way.
(7) (a) “Standard prevailing rate of wages” or “standard prevailing wage” means:
(i) the heavy and highway construction wage rates applicable to heavy and highway construction projects; or
(ii) those wages, other than heavy and highway construction wages, including fringe benefits for health and welfare and pension contributions, that meet the requirements of the Employee Retirement Security Act of 1974 and other bona fide programs approved by the United States department of labor and travel allowance that are paid in the district by other contractors for work of a similar character performed in that district by each craft, classification, or type of worker needed to complete a contract under this part. In each district, the standard prevailing rate of wages is a weighted average wage rate based on all of the hours worked on work of a similar character performed in the district.

The instant case involves the appropriate prevailing wage for laborers working on two separate construction projects at MSU. Specifically, this case involves a dispute as to whether construction workers should receive the “heavy” construction wage which is generally $3.00 to $4.00 per hour greater than the building construction wage rate. The first of these projects was formally known as “Underground Utility Phase II, Montana State University.” For purposes of [154]*154brevity, this project will be referred to as the “Barnard Tunnel” as it was eventually constructed by Barnard Construction. The second project was officially known as the “Engineering/Physical Sciences Building, Utility Tunnel.” This project will be referred to as the “Edsall Tunnel” as Edsall Construction Company contracted to build this second tunnel.

At MSU, many of the buildings are heated with steam from a central heating plant. Steam is carried in underground pipelines to buildings connected to the plant. Both the Edsall and Barnard Tunnels were constructed to house steam and condensate pipes in order to protect them from degradation and make them more accessible for maintenance and repair. The Edsall and Barnard Tunnels are of similar design and are entirely underground. Inside both tunnels are metal frames used to support the steam and condensate pipelines and electrical overhead lights. Neither tunnel has a heating or cooling system, windows, flooring or internal finished walls or any plumbing, plumbing system or bathrooms.

While the Edsall and Barnard Tunnels were being constructed, the Labor Standards Bureau of the Montana Department of Labor and Industry (Department) received an inquiry from Laborers’ International Union of North America, Montana District Council of Laborers (Laborers) concerning the appropriate wage rate for construction on the tunnels. In addition, the Department received a number of complaints from individual construction workers employed on these two projects. Following an investigation, the Department determined that these projects were not conventional buildings and, therefore, should have been classified as “heavy” construction projects for purposes of determining the appropriate prevailing wage. The Department made the following finding:

[A] review of the project’s nature distinguishes it from a building. Few, if any, buildings in Montana are entirely underground, and in the case of the Barnard portion extend over approximately 600 yards through a major portion of the university campus. Few, if any buildings, lack windows, any type of conventional roofing, living or storage space, internal wood or steel framing (other than the utility support structures), doors, plumbing, and heating or cooling systems. Few, if any buildings, have an internal drainage system (gutters) in case of flooding through excess ground water or sump pump failure. Few, if any buildings, are constructed entirely of concrete and reinforcing steel. Indeed, few, if any buildings, are built entirely within the confines of a continuous [155]*155trench running approximately 600 yards in length, an estimated 60 feet in width at ground level .... This is not a building in any conventional sense of the word.

After coming to the above conclusion, the Department found the contracting agency, the Architecture and Engineering Division of the Montana Department of Administration (AEDMDA), was responsible for back pay and future pay resulting from the wage differences. AEDMDA filed an appeal of the Department’s determination and a contested case hearing was held before a Department hearing officer Joseph V. Maronick (Maronick). Maronick entered findings of fact, conclusions of law and an order which affirmed the Department’s determination and directed AEDMDA to compensate construction workers at the “heavy construction” wage rate. AEDMDA appealed this decision to the District Court.

After each party briefed and orally argued this matter, the District Court issued an order reversing the Department’s determination. The District Court held that the Department had misapplied Montana’s Little Davis-Bacon Act, § 18-2-401(7), MCA, and that its decision to award “heavy construction” wages was erroneous. Ekanger, in her position as Commissioner of the Department of Labor and Industry, appeals from the District Court’s order.

DISCUSSION

Are the Edsall and Barnard tunnels “heavy” construction projects under Montana’s Little Davis-Bacon Act, § 18-2-401(5), MCA?

We are called upon to review the District Court’s application of the Little Davis-Bacon Act to the undisputed facts of this case. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont.

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

Related

Burritt v. City of Butte
508 P.2d 563 (Montana Supreme Court, 1973)
Keller v. Smith
553 P.2d 1002 (Montana Supreme Court, 1976)
Steer, Inc. v. Department of Revenue
803 P.2d 601 (Montana Supreme Court, 1990)
Carbon County v. Union Reserve Coal Co., Inc.
898 P.2d 680 (Montana Supreme Court, 1995)
Kreger v. Francis
898 P.2d 672 (Montana Supreme Court, 1995)
Dunphy v. Anaconda Company
438 P.2d 660 (Montana Supreme Court, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
943 P.2d 994, 284 Mont. 151, 54 State Rptr. 821, 1997 Mont. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montana-department-of-administration-v-ekanger-mont-1997.