Construction Industries of Massachusetts v. Commissioner of Labor and Industries

• Decision Date: 22 November 1989
• Citation: 406 Mass. 162,546 N.E.2d 367
• Parties: , 29 Wage & Hour Cas. (BNA) 1056, 114 Lab.Cas. P 56,188 CONSTRUCTION INDUSTRIES OF MASSACHUSETTS et al. 1 v. COMMISSIONER OF LABOR AND INDUSTRIES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 367

546 N.E.2d 367

406 Mass. 162, 29 Wage & Hour Cas. (BNA) 1056,

114 Lab.Cas. P 56,188

CONSTRUCTION INDUSTRIES OF MASSACHUSETTS et al. ¹ v. COMMISSIONER OF LABOR AND INDUSTRIES.

Supreme Judicial Court of Massachusetts Worcester.

Argued Oct. 4, 1989.

Decided Nov. 22, 1989.

John D. O'Reilly, III, Framingham, for plaintiffs.

Suzanne E. Durrell, Asst. Atty. Gen., for Com'r of Labor & Industries.

Paul F. Kelly, Boston, for Excavating & Building Material Teamsters, Chauffeurs & Helpers, Local Union 379, amicus curiae, submitted a brief.

Donald J. Siegel & Mary T. Sullivan, Boston, for Massachusetts Building Trades Council, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

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 consistency 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 application 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 determine 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, 359 N.E.2d 1304 (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 Comm'n Against Discrimination, 364 Mass. 444, 450, 305 N.E.2d 507 (1973). In this case, both 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 conclude that declaratory relief is appropriate. See Ciszewski v. Industrial Accident Bd., 367 Mass. 135, 141, 325 N.E.2d 270 (1975) (exhaustion of administrative remedies not required when controversy centers around authority and power of agency); Belfer v. Building Comm'r of Boston, 363 Mass. 439, 442, 294 N.E.2d 857 (1973) (declaratory relief appropriate where resort to administrative remedy is futile).

2. Authority of the commissioner. General Laws c. 149, §§ 26-27F, comprise a comprehensive legislative enactment which, inter alia, regulates the minimum wages of certain employees who are engaged in the construction of public works. The commissioner, under § 27, is required to prepare a list of the jobs usually performed on public works projects and, when requested, to assign to each job the minimum wage which must be paid to persons performing that job. The commissioner contends that truck drivers who transport bituminous concrete to public works projects are "teamsters" employed on those projects. We agree.

It is beyond dispute that the truck drivers at issue are "teamsters." Section 26 of the statute requires, however, that those teamsters be employed "in the construction of public works" and "on said works" (emphasis supplied). Section 27 makes reference to "jobs ... on various types of public works upon which ... teamsters ... are employed" (emphasis supplied). Section 27B provides that employers "engaged in ... public works" must maintain records of teamsters "employed thereon " (emphasis supplied). When a statute is clear and unambiguous, the plain meaning of the language must be given effect. Telesetsky v. Wight, 395 Mass. 868, 872, 482 N.E.2d 818 (1985). Quite clearly, the commissioner has not been given authority to set wages for all teamsters who...