96-488




                                                                                 No. 96-488

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                                 1997



                                               MONTANA DEPARTMENT OF ADMINISTRATION,

                                                                     Petitioner and Respondent,

                                                                                         v.

                                     LAURIE EKANGER, Commissioner of Labor and
                                Industry, Montana Department of Labor and Industry;
                                        THE LABORERS INTERNATIONAL UNION OF
                                       NORTH AMERICA-MONTANA DISTRICT COUNCIL
                                        OF LABORERS; INTERNATIONAL UNION OF
                                      OPERATING ENGINEERS; UNITED BROTHERHOOD
                                       OF CARPENTERS AND JOINERS OF AMERICA;
                                          EDSALL CONSTRUCTION COMPANY; and
                                            BERNARD CONSTRUCTION COMPANY,

                                                                    Respondents and Appellants.



                      APPEAL FROM:                  District Court of the First Judicial District,
                                                        In and for the County of Lewis & Clark,
                                                   The Honorable Dorothy McCarter, Judge presiding.

                                                                   COUNSEL OF RECORD:

                                                                                For Appellants:

                             Daniel B. McGregor, Department of Labor and Industry, Helena, Montana

                                                Karl J. Englund, Attorney at Law, Missoula, Montana

                                                                                For Respondent:

                                   Kelly A. Jenkins, Department of Administration, Helena, Montana



                                                                               Submitted on Briefs: March 27, 1997

                                                                               Decided:               August 7, 1997
                                                                               Filed:

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                                                          __________________________________________
                                                                     Clerk

                     Justice W. William 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 Courtþs order which reversed the
    Department of Laborþs order awarding þheavyþ and þhighwayþ 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 þheavyþ and þhighwayþ 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 ?

                                                     BACKGROUND
        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.

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        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 þheavyþ 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 þUnderground Utility Phase II, Montana
 State University.þ For purposes of brevity, this project will be referred to as the
   þBarnard Tunnelþ as it was eventually constructed by Barnard Construction. The
                                            second
 project was officially known as the þEngineering/Physical Sciences Building, Utility
      Tunnel.þ This project will be referred to as the þEdsall Tunnelþ 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 Laborersþ 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 þheavyþ construction projects for purposes of
                                         determining
      the appropriate prevailing wage. The Department made the following finding:
           [A] review of the projectþs 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 trench 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.

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  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 Departmentþs 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 Departmentþs determination and directed AEDMDA to compensate
   construction workers at the þheavy constructionþ 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 Departmentþs determination. The District Court held that the
  Department had misapplied Montanaþs Little Davis-Bacon Act,     18-2-401(7), MCA, and
that its decision to award þheavy constructionþ wages was erroneous. Ekanger, in her
  position as Commissioner of the Department of Labor and Industry, appeals from the
                                  District Courtþs 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
                                        courtþs
   conclusions of law is whether the courtþs interpretation of the law is correct.
                                         Carbon
 County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see
 also Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672; Steer, Inc. v. Depþt of
              Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.
       Montana's Little Davis-Bacon Act defines three categories of wage rates: heavy
construction, highway construction and "other" types of construction. Sections 18-2-
 401(5) and (7), MCA. The District Court held that this statute was unambiguous and
  explained that the Barnard and Edsall tunnel projects did not qualify as "heavy or
   highway" construction under    18-2-401(5), MCA, which defines "heavy and highway
                        construction wage rates" as applying to:
         projects, such as alteration or repair of roads, streets, highways, alleys,
                  runways, trails, parking areas, or utility rights-of-way.

      In interpreting the above statute, the court reasoned that, with the exception
                                            of
 "utility rights-of-way," the examples given all relate to roads and highways. The
                                        projects
  in question were obviously not in the nature of a road or highway. The appellant,
 however, argues that the projects are "utility rights-of-way." In response to this
   argument, the court noted that, although the term "utility rights-of-way" is not
                                         defined
                       in Title 18, it is defined in Title 60 as:
          "Right of way" is a general term denoting land, property, or any interest
        in land or property, usually in a strip, acquired for or devoted to highway

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                                                                                  purposes.

Section 60-1-103(23), MCA. The court also relied on the definition of "right of way"
                  in Black's Law Dictionary 1326 (6th ed. 1990) as,
      a right belonging to a party to pass over land of another, but it is also used
       to describe that strip of land upon which railroad companies construct their
      road bed, and, when so used, the term refers to the land itself, not the right
                                   of passage over it.

Based upon these definitions of "right of way," the court concluded: "Simply stated,
                                                a
 'right of way' is only an interest in the land or the use of the land, and does not
                                            include
utilities or other projects located on it." Since the tunnel projects were not road
                                            related
  and were not "utility rights-of-way" (i.e. interests in land), the court concluded
                                           that the
      tunnels "do not fit within any of the enumerated examples" of heavy or highway
    construction. We determine that the District Court 's use of this definition of
                                           "utility
 rights-of-way" in the context of the Little Davis-Bacon Act is erroneous. It makes
                                               no
sense to define "utility rights-of-way," as that term is used in        18-2-401(5), MCA,
                                               as
   "only an interest in land." The relevant portion of       18-2-401(5), MCA, includes
                                           "utility
            rights-of-way" in its examples of "heavy and highway construction
                                    projects." (Emphasis
 added.) An "interest in land" cannot be considered as an example of a "project" in
                                              any
        sense of the word. An interest in land exists by virtue of law; it is not
                                        "constructed"
     through wage labor. As used in      18-2-401(5), MCA's list of projects, "utility
                                          rights-of-
       way" clearly denotes something that is built or constructed through labor.
                                         Furthermore,
   a utility right-of-way is something other than a road or a highway. The District
                                             Court
erred in concluding that       18-2-401(5), MCA, has application only to matters related
                                               to
 roads or highways. It applies as well to projects in which "utility rights-of-way"
                                              are
                                 constructed through labor.
             In construing any statute, the goal is to ascertain and implement the
                                        legislatureþs
    intent. Burritt v. City of Butte (1973), 161 Mont. 530, 508 P.2d 563. Where the
 language of a statute is plain and unambiguous, there is nothing left for a court to
  construe. Keller v. Smith (1976), 170 Mont. 399, 553 P.2d 1002; Dunphy v. Anaconda
    Co. (1968), 151 Mont. 76, 438 P.2d 660. Section 18-2-401(5), MCA, requires heavy
                        and highway construction rates for projects:
           such as alteration or repair of roads, streets, highways, alleys, runways,
                         trails, parking areas, or utility rights-of-way.

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The use of the phrase þsuch asþ in listing projects requiring heavy construction wage
 rates reflects an intent that the list be inclusive rather than exclusive. Section
                                         18-2-
401(5), MCA, is unambiguous in its inclusion of "utility rights-of-way" in the heavy
                                          and
                            highway project classification.
        The Edsall and Barnard Tunnels are "utility rights-of-way" projects in which
     tunnels were constructed to house steam and condensate pipes in a protected
                                      underground
corridor to provide heat to buildings on the MSU campus. As such, these projects are
among the enumerated projects considered as "heavy construction" under     18-2-401(5),
                                          MCA.
            In summary, we hold that the Little Davis-Bacon Act heavy and highway
    construction wage rate clearly is not restricted to projects which are road or
                                        highway
    related. Rather, this wage rate has application to "heavy" projects involving
                                    utility rights-
of-way such as the Edsall and Barnard Tunnels. The decision of the District Court is
    reversed and the matter is remanded for determination of appropriate back pay.

                                                                                                  /S/       W. WILLIAM LEAPHART

                                                                            We concur:

                                                               /S/ JAMES C. NELSON
                                                            /S/ WILLIAM E. HUNT, SR.
                                                             /S/ TERRY N. TRIEWEILER




                                        Justice Karla M. Gray, specially concurring.



         I concur in the result reached by the Court, namely, that the construction
                                         workers
    on the Edsall and Barnard Tunnel projects are entitled to be paid at heavy and
                                         highway
    construction wage rates. I do not agree with all that is said by the Court in
                                      reaching that
result or with the Court's approach to the statutory definition of "heavy and highway
                               construction wage rates."
      I do agree with the Court that the "such as" language in the    18-2-401(5), MCA,
  listing of projects requiring heavy and highway construction wage rates reflects a
     legislative intent that the list be inclusive rather than exclusive. Stated
                                    differently, the
 "such as" list is merely illustrative of the types of projects properly designated
                                       "heavy and
   highway construction" projects. That being the case, it is unnecessary for the
                                        Court to

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"force feed" the Edsall and Barnard Tunnel projects into one of the actual categories
     listed in    18-2-401(5), MCA, and that approach results in a somewhat strained
             interpretation that these projects are "utility rights of way."
        Given the inclusive rather than exclusive listing contained in     18-2-401(5),
                                            MCA,
    all that is necessary to conclude that the workers in this case are entitled to
                                        heavy and
   highway construction wage rates is to establish that the projects are of the same
                                          type or
      nature as those listed in the statute. Here, that is a relatively easy task.
          The projects involved the demolition of existing, and construction of new,
  sidewalks and roads. Thus, in the language of the statute, they can be likened to
                                           heavy
      and highway construction projects involving "alteration or repair of roads,
                                     streets. . .[or]
   trails. . . ." More importantly, they involved underground tunnel work much more
   similar to utility pipeline and power line projects than to conventional building
   construction projects for which heavy and highway construction wage rates are not
required. In addition, of course, the formal names of the Edsall and Barnard Tunnel
 projects--"Engineering/Physical Sciences Building, Utility Tunnel" and "Underground
Utility Phase II, Montana State University," respectively--reflect that the projects
                                            were
 utility-type projects. That the projects were not located on utility rights of way
                                         does not
                            change the nature of the projects.
        I would conclude that the Edsall and Barnard Tunnel projects are of the same
                                            type
 and nature as the projects listed in      18-2-401(5), MCA, for which heavy and highway
      construction wage rates are required. For that reason, I join the Court in
                                      reversing the
                                     District Court.


                                                                                                   /S/       KARLA M. GRAY




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