N.M. Bldg. & Constr. Trades Council v. Dean

• Citation: 353 P.3d 1212,2015 NMSC 023
• Decision Date: 15 June 2015
• Docket Number: 34,719.
• Parties: NEW MEXICO BUILDING AND CONSTRUCTION TRADES COUNCIL, International Brotherhood of Electrical Workers Local 611, and Sheet Metal Workers Local 49, Petitioners, v. Jason DEAN, in his capacity as Director of the Labor Relations Division of the Department of Workforce Solutions of the State of New Mexico, Respondent, and Celina Bussey, Secretary of the Department of Workforce Solutions of the State of New Mexico, Real Party in Interest, and Associated Builders and Contractors, New Mexico Chapter, Inc., and Northern New Mexico Independent Electrical Contractors, Inc., Interveners–Real Parties in Interest.
• Court: New Mexico Supreme Court

353 P.3d 1212

2015 NMSC 023

NEW MEXICO BUILDING AND CONSTRUCTION TRADES COUNCIL, International Brotherhood of Electrical Workers Local 611, and Sheet Metal Workers Local 49, Petitioners

v. Jason DEAN, in his capacity as Director of the Labor Relations Division of the Department of Workforce Solutions of the State of New Mexico, RespondentandCelina Bussey, Secretary of the Department of Workforce Solutions of the State of New Mexico, Real Party in InterestandAssociated Builders and Contractors, New Mexico Chapter, Inc., and Northern New Mexico Independent Electrical Contractors, Inc., Interveners–Real Parties in Interest.

34,719.

Supreme Court of New Mexico.

June 15, 2015.

Youtz & Valdez, P.C., Shane Youtz, Stephen Curtice, James A. Montalbano, Albuquerque, NM, for Petitioners.

Law Office of Jason Lewis, Jason J. Lewis, New Mexico Department of Workforce Solutions, Marshall J. Ray, Albuquerque, NM, for Respondent and Real Party in Interest.

Bingham, Hurst, Apodaca, & Wile, P.C., Wayne E. Bingham, Albuquerque, NM, for Intervener–Real Parties in Interest.

Hector H. Balderas, Attorney General, Scott Fuqua, Assistant Attorney General, Santa Fe, NM, for Amicus Curiae, New Mexico Attorney General.

Opinion

MAES, Justice.

{1} In this case, we determine whether the Director of the Labor Relations Division (the Director) of the New Mexico Department of Workforce Solutions (DWS) is in violation of the Public Works Minimum Wage Act (the Act), NMSA 1978, §§ 13–4–10 to –17 (1937, as amended through 2011), for failing to set prevailing wage rates and prevailing fringe benefit rates for public works projects in accordance with collective bargaining agreements (CBAs). We hold that under the Act the Director has a mandatory, nondiscretionary duty to set the same prevailing wage and prevailing benefit rates as those negotiated in applicable CBAs and that the Director's failure to do so violates the Act. We therefore issue a writ of mandamus ordering the Director to comply with the Act and set rates in accordance with CBAs as required under the Act within thirty days of the issuance of this opinion.

I. BACKGROUND

{2} Petitioner New Mexico Building and Construction Trades Council is an alliance of craft unions representing the interests of thousands of New Mexico employees working on public works projects throughout the State. Petitioners International Brotherhood of Electrical Workers Local 611 and Sheet Metal Workers Local 49 are affiliated members of the Council. Petitioners are hereafter collectively referred to as “the Unions.” Respondent Jason Dean is currently the Director of the Labor Relations Division of DWS. Real Party in Interest Celina Bussey is the Secretary of DWS (the Secretary); Real Parties in Interest Associated Builders and Contractors, New Mexico Chapter, Inc., and the Northern New Mexico Independent Electrical Contractors, Inc., represent contractors performing work on public works projects. The Unions seek a writ of mandamus from this Court directing the Director to set prevailing wage and prevailing benefit rates for public works projects in accordance with rates specified in CBAs in or near a project's locality, as required by Section 13–4–11(B) of the Act.

{3} This is the second time the New Mexico Building and Construction Trades Council has petitioned this Court for mandamus in the matter of DWS compliance with Section 13–4–11(B). In June 2011 this Court denied a petition for writ of mandamus in order to give the Secretary “four or five months” to set prevailing wage and prevailing benefit rates under the Act as amended in 2009. Counsel for the Secretary assured this Court in oral argument that the Director at that time could have rates set within four or five months:

I would say this could conceivably be done in four or five months, which I don't think is unreasonable, especially since the Secretary has assured me, and I'm assuring the Court, that she's intent on getting this done. I don't think it requires a writ of mandamus to get it done. But, whatever the Court desires, I'm confident she'll get it done.

The director in office in 2009 determined prevailing wage and prevailing benefit rates to take effect on January 1, 2010 using the pre–2009 amendment wage survey method even though the amended Act became effective on July 1, 2009. And to this date, because wages are still not determined under the amendments to the Act that became effective on July 1, 2009, the rates have been the same as those determined by the director in 2009.

{4} In March 2012 the Secretary promulgated two new regulations, see 11.1.2.18 & .19 NMAC, and amended most others, see 11.1.2.7 to .17 NMAC (3/15/2012, as amended through 1/15/2014) but has yet to set rates in accordance with the Act as amended in 2009. See generally Public Works Minimum Wage Act Policy Manual, 11.1.2 NMAC (7/23/1969, as amended through 1/15/2014). We acknowledge that litigation is currently pending that challenges the March 2012 changes to the regulations as “arbitrary and capricious, not supported by substantial evidence, outside the scope of authority of the Secretary, and otherwise not in accordance with law” and we express no opinion as to the merits of that proceeding.See No. D–202–CV–2014–05512 (indicating in the August 22, 2014, notice of appeal to the district court that the Secretary's changes to the regulations failed to adhere to DWS' own regulations as well as the Act).

II. THIS COURT'S EXERCISE OF ITS ORIGINAL JURISDICTION IN MANDAMUS IS PROPER TO ADDRESS MATTERS OF GREAT PUBLIC IMPORTANCE IMPLICATING CONSTITUTIONAL SEPARATION OF POWERS QUESTIONS BETWEEN THE LEGISLATIVE AND EXECUTIVE BRANCHES OF OUR STATE GOVERNMENT

{5} This Court has “original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions.” N.M. Const. art. VI, § 3. “Mandamus lies to compel the performance of a ministerial act or duty that is clear and indisputable.” New Energy Econ., Inc. v. Martinez, 2011–NMSC–006, ¶ 10, 149 N.M. 207, 247 P.3d 286. “A ministerial act is an act which an officer performs under a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done.” Id. ¶ 10 (internal quotation marks and citation omitted).

{6} This Court will exercise its original jurisdiction in mandamus when the petitioner presents a purely legal issue concerning the non-discretionary duty of a government official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal.

State ex rel. King v. Lyons, 2011–NMSC–004, ¶ 21, 149 N.M. 330, 248 P.3d 878 (internal quotation marks and citations omitted).

{7} The Unions present a purely legal issue concerning whether the Director has a nondiscretionary duty under the Act to set prevailing wage and prevailing benefit rates in accordance with CBAs. Additionally, we recognize that the Director's failure to comply with a mandate of the Legislature would implicate separation of powers concerns. It is duly established that the legislative branch makes the laws, the executive branch executes the laws, and our “Constitution prohibits any branch of government from usurping the power of [an]other branch[ ].” State ex rel. Taylor v. Johnson, 1998–NMSC–015, ¶ 20, 125 N.M. 343, 961 P.2d 768 (citing N.M. Const. art. III, § 1 ). “The balance and maintenance of governmental power is of great public concern.” State ex rel. Taylor, 1998–NMSC–015, ¶ 17, 125 N.M. 343, 961 P.2d 768. As such, the Director's undisputed five-year delay in setting rates in accordance with the Act warrants a speedy resolution by this Court. As this Court has repeatedly recognized, “when issues of sufficient public importance are presented which involve a legal and not a factual determination, we will not hesitate to accept the responsibility of rendering a just and speedy disposition.” State ex rel. Bird v. Apodaca, 1977–NMSC–110, ¶ 5, 91 N.M. 279, 573 P.2d 213. See also State ex rel. King, 2011–NMSC–004, ¶ 21, 149 N.M. 330, 248 P.3d 878 (recognizing the importance of mandamus when timely relief “cannot be obtained through other channels”).

III. MANDAMUS IS PROPER BECAUSE THE DIRECTOR HAS A CLEAR, INDISPUTABLE, AND NONDISCRETIONARY DUTY TO SET PREVAILING WAGE RATES AND PREVAILING FRINGE BENEFIT RATES IN ACCORDANCE WITH CBAs

{8} The Director and the Secretary argue that mandamus is not a proper remedy because the Director's duty under the Act is discretionary. See Cook v. Smith, 1992–NMSC–041, ¶ 5, 114 N.M. 41, 834 P.2d 418 (“Discretionary acts are beyond the reach of the writ.” (citations omitted)). The Director and the Secretary cite Section 13–4–11(B)(2) and (B)(3) to argue that in addition to considering CBAs, the Director must give due regard to other data, opinions, and arguments submitted to DWS, including non-CBA wage rate data, in making prevailing wage and prevailing benefit rate determinations, even when applicable CBAs exist. We disagree. A plain reading of Section 13–4–11 and its recent amendment history provides the basis for our reasoning.

{9} The Director is required by the Act to set prevailing wage rates and prevailing fringe benefit rates for all public works projects costing more than sixty thousand dollars to which the State or any political subdivision is a party. Section 13–4–11(A), (B). Prior to 2009, the Act required the Director to obtain and compile wage rate information and give due regard to such information before making a wage rate determination:

For the purpose of making wage determinations, the [D]irector ... shall conduct a continuing program for the obtaining and compiling of wage-rate information and shall encourage the voluntary submission of wage-rate data by contractors, contractors' associations, labor

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