Opinion
No. CV 09 4021804S
October 29, 2010
MEMORANDUM OF DECISION
This administrative appeal is brought pursuant to General Statutes §§ 4-176(h), 4-183(a) by the plaintiff, James Fazzino, from a declaratory ruling, and two explanatory rulings following the declaratory ruling, issued by the Connecticut department of labor (the department). The department issued a declaratory ruling that the plaintiff, as a land surveyor, was not entitled to a "prevailing wage" pursuant to General Statutes § 31-53(a) for performing his assigned tasks at state or local public works projects. The department subsequently issued a ruling that denied the plaintiff's motion to reconsider, and, after an agreed-upon remand for additional evidence, issued a ruling re-affirming the initial declaratory ruling.
On May 20, 2009, the commissioner of labor issued the declaratory ruling for the department and made the following relevant findings of fact:
1. The [plaintiff] is a land surveyor [under General Statutes § 20-299 (2)] .a. .
2. The [plaintiff] has worked at various times since the mid 1990s on state construction jobs which have been characterized as public works projects within the meaning of [§ 31-53].
3. On each state public works project on which the [plaintiff] has worked as a land surveyor, the occupation known as "Land Surveyor" has not been listed on a State of Connecticut Prevailing Rate Schedule.
4. As part of his actual land surveyor duties on such public works projects, the [plaintiff] engaged in job duties described in [§ 20-299], including making measurements, mapping elevations and topography, determining positions of points with respect to appropriate horizontal or vertical datums and reproducing dimensions within specific property lines in accordance with zoning and setback minimums as required by local ordinances. The [plaintiff] also laid out a grid of column lines and corners which enabled workers engaged in the construction trades to accurately place their work, e.g., concrete foundations, steel column lines, storm drainage and utility lines.
5. The job duties performed by the [plaintiff] on such public works projects are of a highly technical nature, and require significant mental and physical proficiencies. The physical components of the [plaintiff's] job duties include the ability to drive stakes and other markers, endure the elements and carry equipment.
6. All of the job duties engaged in by the [plaintiff] on such public works projects were performed as preliminary site work.
7. The [plaintiff] did not perform manual duties as an actual part of his land surveyor duties on any public work project.
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9. Pursuant to [§ 31-53(d)(2)], the [department] adopts and uses such appropriate and applicable prevailing wage rate determinations as have been made by the Secretary of Labor of the United States under the provisions of the Davis-Bacon Act, amended [40 U.S.C. § 276a et seq.].
The record in this case contains an analysis of the Davis-Bacon Act as it applies to land surveyors, issued by the U.S. Department of Labor, and this analysis served as the guideline followed by the commissioner. (ROR, pp. 33-35).
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11. Land surveyors, as an occupation, are not recognized as a prevailing rate classification pursuant to the Davis-Bacon Act unless the land surveyor: (i) performs surveying work immediately prior to or during actual construction in support of construction crews; or (ii) primarily performs work in a prevailing rate classification recognized by the Davis-Bacon Act.
12. It has been a longstanding position of the United States Department of Labor . . . that preliminary survey work, such as preparation of boundary surveys and topographical maps, is not construction work covered by the Davis-Bacon Act, especially when performed pursuant to a separate contract of employment. (Return of Record, ROR, pp. 37-40.)
Based on these findings of fact, the commissioner concluded first that the Davis-Bacon Act, a federal law, excluded a land surveyor from the prevailing wage law unless the surveyor had done work immediately prior to or during construction or was a "laborer or mechanic." The plaintiff had failed to provide such proof to the commissioner.
The commissioner secondly concluded that while the department under § 31-53(d)(1) was permitted to make an independent determination of whether land surveyors were subject to the prevailing wage law, it was equally permitted under § 31-53(d)(2) merely to follow the determination as made under the Davis-Bacon Act. Here the department had elected to follow the Davis-Bacon approach. Therefore the commissioner issued a declaratory ruling that the plaintiff was not entitled to a prevailing wage classification. (ROR, pp. 41-47.)
On June 30, 2009, in response to plaintiff's request for reconsideration, the commissioner upheld her prior decision. The commissioner first refused to consider the plaintiff's status under an amended job title, "construction layout technician." He had had full and fair consideration of the issue under his stated classification as "land surveyor." Secondly, the commissioner stated that she had no proof that the plaintiff engaged in work immediately prior to and during actual construction, as opposed to preliminary work. Nor did he provide proof of any manual duties that he had engaged in. Finally, the commissioner disagreed with the plaintiff's contention that the department was required to develop a classification under § 31-53(d)(1) that covered the plaintiff's activities. Rather the department was permitted by § 31-53(d)(2) to rely solely on the Davis-Bacon Act classifications. (ROR, pp. 83-93.)
The commissioner did not abuse her discretion in refusing to reconsider her ruling on this ground as the plaintiff had clearly had the opportunity in the original proceeding to furnish his job title and job description. Cf. Housing Authority v. State Board of Labor Relations, 47 Conn.Sup. 624, 629, 820 A.2d 332 (2001) (allowing newly-discovered evidence on reconsideration to rectify a mistake that "went to heart of the matter").
After an appeal was taken by the plaintiff, on April 15, 2010, the parties agreed to remand this matter to the department so that the plaintiff might submit to the department documentary proof supportive of his claims. As indicated above, the commissioner noted that this proof had not been forwarded to her at the time that she was determining her response to the declaratory ruling. The plaintiff subsequently submitted this material to the department.
On September 3, 2010, the acting commissioner of the department issued a "response to rebuttal evidence submitted by plaintiff-Fazzino." The acting commissioner stated: "After carefully reviewing the evidence submitted by [the plaintiff], the [department] remains unpersuaded that the surveying duties performed by [the plaintiff] on the projects submitted were of a manual nature within a prevailing rate classification, e.g., laborer, mechanic, carpenter, operating engineer, etc., so as to afford him coverage under the state prevailing wage statute."
(ROR, p. 109.)
The commissioner reviewed one letter of a structural engineer, submitted by the plaintiff, that stated that placing markers by measuring and layout was an inherent component of new construction. The engineer analogized the plaintiff's activities to a plumber, electrician, or carpenter. (Supp. ROR, p. 100.) The commissioner, however, stated that there was no showing that layout tasks were "materially different from typical land surveyor duties" as described in § 20-299(2). In addition, the plaintiff's direct supervisor noted that the plaintiff was a Survey Crew Chief; therefore under the Davis-Bacon Act, the plaintiff could not be considered a mechanic or laborer. The supervisor stated that the plaintiff's work was not "construction work." (Supp. ROR, pp. 101-02.) The original declaratory ruling was therefore kept in place.
The plaintiff is aggrieved by the declaratory ruling and subsequent rulings for the purposes of § 4-183.
The plaintiff seeks in this action a review of the department's declaratory ruling and the subsequent follow-up rulings. His contentions are reviewed under standards set by our appellate courts. "Conclusions of law reached by the administrative agency [in a declaratory ruling] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." Where the agency has rendered a declaratory ruling on a matter not previously reviewed by a court, the court must engage in plenary review to insure that governing principles of law were followed. See Wallingford v. Dept. of Public Health, 262 Conn. 758, 772, 817 A.2d 644 (2003).
As to questions of fact determined by the agency, "it is [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency." Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008). See also Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 598-99, 996 A.2d 729 (2010): "According to our well established standards, [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . It is well settled [however] that we do not defer to the board's construction of a statute — a question of law — when . . . the [provisions] at issue previously ha[ve] not been subjected to judicial scrutiny . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." (Citations omitted.)
The plaintiff contests as a matter of law that the department was permitted under § 31-53(d)(2) to rely on the Davis-Bacon Act classifications and not create a separate classification for land surveyors. He points out that under § 31-53(d)(1) the department may decide on the amount of the prevailing wage and create classifications, but § 31-53(d)(2) speaks only of following the prevailing wage determinations of the Davis-Bacon Act. Since subsection (d)(2) does not mention classifications, he argues that the department has the authority to consider developing a prevailing wage classification for land surveyors.
While this is one interpretation, the court approves as more logical the department's interpretation that allows it to defer to the federal classifications as well. As our Supreme Court has stated: "[T]he Davis-Bacon Act . . . is persuasive authority for our interpretation of what is required in regard to the payment of the prevailing rate of wage." Electrical Contractors, Inc. v. Tianti, 223 Conn. 573, 586, 613 A.2d 281 (1992). As a matter of law, the court concludes that the legislature intended by § 31-53(d)(2) that the department have the right to elect to follow the Davis-Bacon Act and not develop a separate prevailing wage classification that applies in every instance to land surveyors.
The plaintiff, on the facts, argues that his layout responsibilities at a commercial premises include manual labor, such as driving spikes and clearing the ground of boulders. The plaintiff claims these activities are similar to actions taken by electricians and iron workers, who are covered by the state prevailing wage law. On the other hand, the department concluded that on this record, the plaintiff's layout activities were ancillary to his special skill and training as a professional land surveyor; and he did not qualify for the prevailing wage. The court under the standard of review set forth above finds that there is substantial evidence in the record to support the department's conclusions.
Therefore the appeal is dismissed.