State Dept. of Labor and Indus. Relations, Div. of Labor Standards v. Board of Public Utilities of City of Springfield

• Decision Date: 18 October 1995
• Docket Number: No. 20106,20106
• Citation: 910 S.W.2d 737
• Court: Missouri Court of Appeals
• Parties: 131 Lab.Cas. P 58,029, 2 Wage & Hour Cas.2d (BNA) 1769 STATE of Missouri, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, DIVISION OF LABOR STANDARDS, Plaintiff-Appellant, v. BOARD OF PUBLIC UTILITIES OF the CITY OF SPRINGFIELD, d/b/a City Utilities of Springfield, Missouri, Defendant-Respondent.

Page 737

910 S.W.2d 737

131 Lab.Cas. P 58,029, 2 Wage & Hour Cas.2d

(BNA) 1769

STATE of Missouri, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, DIVISION OF LABOR STANDARDS, Plaintiff-Appellant, v. BOARD OF PUBLIC UTILITIES OF the CITY OF SPRINGFIELD, d/b/a City Utilities of Springfield, Missouri Defendant-Respondent.

No. 20106.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 18, 1995.

Motion for Rehearing or Transfer

Denied Nov. 9, 1995.

Application to Transfer Denied

Dec. 19, 1995.

Jeremiah W. (Jay) Nixon, Atty. Gen., Charles W. Hatfield, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.

Turner White, Springfield, for defendant-respondent.

Dale L. Ingram, Jolley, Walsh & Hager, Kansas City, as amicus curiae.

SHRUM, Chief Judge.

This declaratory judgment action arises from the efforts of Department of Labor and Industrial Relations, Division of Labor Standards (Department), to obtain compliance by the Board of Public Utilities of the City of Springfield (Defendant) with the Prevailing Wage Act, §§ 290.210-290.340 (the Act), as to an asbestos removal contract. ¹ Another issue relates to the validity of a regulation promulgated under the Act that requires public bodies such as Defendant to receive, retain, and permit inspection of a contractor's payroll records. By its counterclaim, Defendant sought to enjoin Department from We affirm.

enforcing certain regulations. Department appeals from a summary judgment that declared the challenged regulations invalid and also enjoined Department from enforcing them.

STATUTORY BACKGROUND

The Prevailing Wage Act was enacted by the Missouri legislature in 1957. City of Kennett v. Labor and Industrial Relations Commission, 610 S.W.2d 623, 625 (Mo.banc 1981). "Under the Act, all workmen employed by private contractors in the construction of public works must be paid not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed. Section 290.230[.]" Id. However, § 290.230 does not require that the prevailing wage be paid for "construction" work that is "maintenance work." ²

Section 290.210 is the definitional provision of the Act. Terms defined in that provision include:

"(1) 'Construction' includes construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repair.

"....

"(4) 'Maintenance work' means the repair, but not the replacement, of existing facilities when the size, type or extent of the existing facilities is not thereby changed or increased."

In § 290.240.2, the General Assembly authorized "[t]he [D]epartment [to] establish rules and regulations for the purpose of carrying out the provisions of [the Act]."

DEPARTMENT'S FIRST CLAIM FOR RELIEF

Defendant manages and operates electric generating plants owned by the City of Springfield; consequently, it is a "public body" as defined by the Act. See § 290.210(6).

Defendant had repeatedly refused Department's demands that it comply with 8 CSR 30-3.010(8), a regulation promulgated by Department. That regulation requires that "public bod[ies]" receive monthly the payroll records of its "successful bid contractors" on "public works" projects, keep those records on file for one year, and make those records "available at all times for inspection by ... the Department...." ³

In its "First Claim For Relief," the Department alleged that it had authority under § 290.240 to promulgate 8 CSR 30-3.010(8). Based on this premise, the Department asked the trial court to "[declare] and [adjudge] that [Defendant] must comply with 8 C.S.R. § 30-3.010(8)...."

In its answer, Defendant admitted its non-compliance with 8 CSR 30-3.010(8). Affirmatively, Defendant pled that the regulation was void as being directly contrary to § 290.290.1 and an unauthorized attempt to extend the reach of the statute. In its counterclaim, Defendant sought to enjoin Department from attempting to enforce 8 CSR 30-3.010(8) based on Defendant's claim that the rule was invalid.

Both parties filed motions for summary judgment. The trial court sustained Defendant's motion, found that 8 CSR 30-3.010(8) was invalid and unenforceable, and enjoined Petitioner from attempting to enforce that regulation. However, this portion of the judgment was not based on the theory advanced by Defendant in its pleadings. Rather, the trial court noted that the "legislative objective" was to enforce the Act only as to some public works construction contracts, i.e., those exclusive of "maintenance work." §§ 290.220-.230. It read 8 CSR 30-3.010(8) as requiring public bodies to keep payroll records for maintenance as well as construction projects. With 8 CSR 30-3.010(8) so interpreted, the court then invalidated it as not having a reasonable relationship to the legislative objective that "prevailing wages" be paid workers "engaged in the construction of public works, exclusive of maintenance work."

In Point I(E), Department argues that the trial court erred when it interpreted 8 CSR 30-3.010(8) as requiring public bodies to maintain payroll records for maintenance work. We agree.

In interpreting a regulation, courts should employ a construction that will avoid invalidity when possible. St. Louis Police Officers' Association v. Sayad, 685 S.W.2d 913, 918 (Mo.App.1984). Regulations of administrative agencies that are in pari materia must be construed together. Brown-Forman Distillers Corporation v. Stewart, 520 S.W.2d 1, 10 (Mo.banc 1975). Provisions of a regulation should be viewed in light of, and harmonized with the entire regulation. Americare Systems, Inc. v. Missouri Department of Social Services, 808 S.W.2d 417, 420 (Mo.App.1991).

An interpretation of 8 CSR 30-3.010(8) as including "maintenance work" might be plausible if it is read in a vacuum. However, application of the foregoing rules compels a different conclusion. Regulation 8 CSR 30-3.010 contains several provisions other than subsection (8). All other provisions of the regulation deal with various aspects of the Act explicitly and in detail. When reasonably read, the regulation's other subsections can only be seen as pertaining to work covered by the Act. Indeed, the regulation begins with the following: "All public bodies of Missouri contemplating construction work must obtain from the department a determination of the prevailing hourly rate of wages in the locality (wage determination) which is applicable to that construction." 8 CSR 30-3.010(1). When subsection (8) is viewed in light of, and harmonized with all the provisions of 8 CSR 30-3.010, the only logical conclusion is that the subsection does not, by implication, include prohibited "maintenance work." To hold otherwise would totally disregard the context in which 8 CSR 30-3.010(8) was adopted.

Our conclusion that the trial court erred when it interpreted 8 CSR 30-3.010(8) as including "maintenance work" does not mean that we automatically reverse the trial court's finding of its invalidity. In a declaratory judgment action, as in other cases, a correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. Edgar v. Fitzpatrick, 377 S.W.2d 314, 318 (Mo.banc 1964); Dill v. Poindexter Tile Company, 451 S.W.2d 365, 370 (Mo.App.1970). In this case, we are persuaded that the regulation is invalid because it is in direct conflict with § 290.290.1.

When a regulation conflicts with a statute, the regulation must fall. Hershaw v. Fender-Mason Electric Co., 664 S.W.2d 628, 629 (Mo.App.1984); Johnson v. Labor and Industrial Relations Commission, 591 S.W.2d 241, 244 (Mo.App.1979). "When there is a direct ... inconsistency between a statute and a regulation, the statute which represents the true legislative intent must necessarily prevail." Parmley v. Missouri Dental Board, 719 S.W.2d 745, 755 (Mo.banc 1986).

If the language in an act is clear and unambiguous, there is no room for construction; in such cases, courts must be guided by what the legislature said. Golde's Department Stores v. Director of Revenue, 791 S.W.2d 478, 481 (Mo.App.1990). Moreover, where a statute imposes duties on a particular class of persons or entities but not on others, it is to be construed as excluding from its effect all those not expressly mentioned. See Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965); Brooks v. Pool-Leffler, 636 S.W.2d 113, 117 (Mo.App.1982).

Here, § 290.290.1 of the Act, by its terms, imposes the obligation of payroll-record retention on contractors and subcontractors. From § 290.290.1 it is clear that when the legislature wishes to impose payroll-record retention duties on an entity, it says so. See Mueller v. Missouri Hazardous Waste Management Commission, 904 S.W.2d 552, 558 (Mo.App.1995). Significantly, neither in § 290.290.1 nor elsewhere in the Act is there any reference to similar duties for public bodies. They are omitted from its provisions. The language of § 290.290.1 is unmistakable on this subject; no construction of its language is required. Apparently, the legislature did not deem it necessary to impose the duty of payroll-record retention on public bodies as a means of carrying out the provisions of the Act.

Nevertheless, Department contends that 8 CSR 30-3.010(8) is a "reasonable regulation [that enhances its] ability ... to enforce the [Act]" and thus effectuate the Act's broad remedial purposes. As a result, Department claims it properly exercised its power under § 290.240.2 when it adopted 8 CSR 30-3.010(8). We do not agree. A like argument was made and rejected in Brooks, 636 S.W.2d 113, a case we deem analogous to this. In Brooks, the Human Rights Commission sent a questionnaire to a radio station seeking information about women and minorities. When the station refused to cooperate, a discrimination suit was filed against it. The dispositive issue centered on a regulation that purported to authorize the commission to file discrimination complaints...