Abel Fence, LLC v. Department of Labor, Office of Labor Law Enforcement ( 2022 )


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  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    ABEL FENCE, LLC,                       )
    Appellant-Below,               )
    Petitioner                     )       C.A. No. N21A-11-003 FJJ
    )
    v.                               )       CITATION IN CERTIORARI
    )
    DEPARTMENT OF LABOR,                   )       DECISION OF THE DELAWARE
    OFFICE OF LABOR LAW                    )       SECRETARY OF LABOR
    ENFORCEMENT,                           )       DATED OCTOBER 18, 2021
    Appellee-Below,               )
    Respondent.                   )       CASE NO. 2021-02-18-001
    ORDER ON PETITIONER’S REQUEST
    FOR ISSUANCE OF A WRIT
    Decision: GRANTED
    Submitted: June 10, 2022
    Decided: June 15, 2022
    Petitioner, Abel Fence, LLC (“Abel”) has petitioned this Court for a Writ of
    Certiorari seeking review of the decision of the Department of Labor Secretary,
    Karryl Hubbard, upholding a labor law enforcement officer’s determination that nine
    Abel employees who were installing fencing at the Plummer Community
    Corrections Center should have been paid the prevailing wage for ironworkers
    instead of the prevailing wage for laborers. This Court’s certiorari review is limited
    to review of the record to determine whether the lower tribunal exceeded its
    jurisdiction, committed errors of law, or proceeded irregularly. For the reasons that
    follow, this Court REVERSES and REMANDS Secretary Hubbard’s decision.
    1
    BACKGROUND
    Abel entered into a contract with the State of Delaware for “Plummer
    Community Corrections Center – Fence Replacement Phase 2” for “the replacement
    of the perimeter security fence system along the East and South East perimeter on
    the side.”1 The contract required Abel to pay its employees the prevailing wage for
    working on the project.
    Michael Hopkins (“Hopkins”), a labor law enforcement officer with the
    Office of Labor Law Enforcement (“OLLE”), conducted a prevailing wage
    inspection at Abel’s site. His inspection revealed that Abel had classified and paid
    nine of its employees who were installing security fencing at the laborer prevailing
    wage rate rather than at the ironworkers prevailing wage. The relevant portions of
    the Delaware Prevailing Wage Law Booklet with respect to the classifications of
    “laborers” and “ironworkers” are as follows:
    “Laborers” are defined as those workers who “attach[] and assist[] in
    the installation of … metal fencing (including barbed wire and woven
    wire, excluding chain link and security fencing.”
    “Ironworkers” are defined as those workers who “install chain link
    fences.”
    1
    See Appendix to Petitioner Abel Fence, LLC Opening Brief at 7.
    2
    Hopkins began a prevailing wage investigation into Abel’s wage
    classifications at the site. Hopkins conducted interviews with Abel employees,
    evaluated work performed, reviewed Abel’s daily logs and certified sworn payroll,
    and reviewed the definitions of “laborer” and “ironworker.”
    Letters were exchanged between Hopkins and Abel about a dispute over the
    classification of the employees working on the installation of the fence. Abel’s
    position was that the proper classification was laborers because the workers were
    not installing a chain link fence – the type of work which requires the classification
    of workers as ironworkers. Hopkins disagreed, reasoning that based on the tasks
    actually observed during the onsite inspection, the workers installing security
    fencing should be classified as ironworkers. Hopkins had learned that the workers
    were on site for a few weeks installing fencing. The process involved three phases:
    demolition, installing temporary fencing, and then installation of the new fence.
    Hopkins described the new fence as six feet high, with 12-18 inches of the top curved
    inward, and with spikes at the top of each post to prevent scaling.
    Hopkins notified Abel in a letter dated May 10, 2021 that the classification
    and payment of its employees as laborers instead of ironworkers was in violation of
    Delaware’s Prevailing Wage Law and Delaware’s Prevailing Wage Regulations. As
    a result of Abel’s misclassification, it had underpaid nine of its ironworkers on the
    project in the amount of $6,108.22.
    3
    On May 13, 2021, Thomas Erb, a representative for Abel, wrote back to
    Hopkins disputing his classification of Abel’s workers but did not specifically
    request a hearing before the Secretary as required by the Prevailing Wage
    Regulations. Able later obtained counsel who directly requested an appeal hearing
    before the Secretary on behalf of Abel – outside the 15-day period for requesting
    such a hearing. After reviewing arguments from both parties on whether an appeal
    was timely filed, the Secretary determined to liberally construe Abel’s May 13 pro
    se letter and hold a hearing which was memorialized in a letter to the parties dated
    September 3, 2021. The Secretary held a hearing on October 7, 2021. In a decision
    dated October 18, 2021, the Secretary affirmed Hopkins classification of the nine
    Abel workers on the project as ironworkers and that Abel owed the deficiency
    amount of $6,108.22. Hopkins did not request civil penalty sanctions and the
    Secretary did not find that the matter warranted such a penalty. The Secretary
    reasoned that while the appropriate wage was not paid, the evidence reflects that
    Abel’s failure to pay the correct rate was based on a genuine dispute regarding the
    applicable rate and not an effort to avoid paying the prevailing wage. The Secretary’s
    decision is final and unappealable.
    Abel then filed a Petition for Writ of Certiorari with this Court. Abel argues
    that Secretary Hubbard’s decision must be reversed because (1) the Secretary
    committed legal error in affirming the OLLE officer’s decision to classify Abel’s
    4
    employees as ironworkers; (2) the Secretary improperly applied the Delaware
    Administrative Code regulation that requires workers to be paid according to what
    work they actually performed, not based upon the type of structure erected or built;
    and (3) that the Secretary proceeded irregularly by failing to hold the Department to
    the burden of proof pursuant to the Administrative Code.
    This Court held oral argument on May 25, 2022. Following oral argument, the
    parties submitted supplemental briefing. The matter is now ripe for decision.
    STANDARD OF REVIEW
    “Under Delaware law, a writ of certiorari is essentially a common law writ.”2
    Its purpose “is to permit a higher court to review the conduct of a lower tribunal of
    record.” 3 Under this common law writ, this Court has the power to quash or affirm
    the proceedings and to remand.” 4 The “threshold qualifications for Certiorari review
    … [are] in particular that the judgment below is final, and that there must be no other
    available basis for review.” 5 The court’s review on certiorari “involves a review
    only of errors that appear on the face of the record.”6 Certiorari review differs from
    2
    Goldberg v. City of Wilmington, 
    1992 WL 114074
    , at *1 (Del. Super. Ct. May 26, 1993); See also Christiana Town
    Ctr., LLC v. New Castle County, 
    2004 WL 2921830
    , at *2 (Del. Dec. 16, 2004) (citing Shoemaker v. State, 
    375 A.2d 431
    , 436-37 (Del. 1997); Woolley, Delaware Practice, Volume 1 §894. See e.g., Hundley v. O’Donnell, 
    1998 WL 842293
    , at *3 n.7 (Del. Ch. Dec. 1, 1998).
    3
    Christiana Town Ctr., LLC, 
    2004 WL 2921830
    , at *2.
    4
    Jardel Co., Inc. v. Carroll, 
    1990 WL 18296
    , at *2 (Del. Super. Ct. Feb. 26, 1990); State v. J.P. Ct. No. 7, 
    1989 WL 31600
    , at *1 (Del. Super. Ct. April 13, 1989); Breasure v. Swartzentruber, 
    1988 WL 116422
    , at *1 (Del. Super. Ct.
    Oct. 7, 1988) (citations omitted).
    5
    Christiana Town Ctr., LLC v. New Castle County, 
    2003 WL 22120857
    , at *1(Del. Super. Ct. Sept. 10, 2003). See
    e.g. Adijile, Inc. v. City of Wilmington, 
    2004 WL 2827983
    , at *1 (Del. Super. Ct. Nov. 30, 2004), aff’d, 
    2005 WL 1139577
     (Del. May 12, 2005).
    6
    Luby v. Town of Smyrna, 
    2001 WL 1729121
    , at *2 (Del. Super. Ct. Dec. 27, 2001) (citing Castner v. State, 
    311 A.3d 858
    , 860 (Del. 1973).
    5
    appellate review in that an appeal “brings up the case on its merits,” while a writ
    brings the matter before the reviewing court to “look at the regularity of the
    proceedings.”      7
    Thus, certiorari review “is not the same as review on appeal”
    because it “is on the record and the reviewing court may not weigh the evidence or
    review the lower tribunal’s factual findings.” 8 It is the function of “the agency, not
    the court, to weigh evidence and resolve conflicting testimony and issues of
    credibility.”9 Thus, the Court does not consider the case below “on its merits” or
    “substitute its own judgment for [that] of the inferior tribunal.” 10 Instead, the Court’s
    review is limited to considering “the record to determine whether the lower tribunal
    [:] (a) exceeded its jurisdiction (b) committed errors of law, or (c) proceeded
    irregularly.11 A decision “will be reversed on jurisdictional grounds only if the record
    fails to show that the matter was within the lower tribunal’s personal and subject
    matter jurisdiction.”12 A decision “will be reversed for an error of law … when the
    record affirmatively shows that the lower tribunal has ‘proceeded illegally or
    manifestly contrary to law.’” 13 Finally, a decision “will be reversed for irregularities
    of proceedings if the lower tribunal failed to create an adequate record to review.” 14
    7
    Breasure, 
    1988 WL 116422
    , at *1.
    8
    Christiana Town Ctr., LLC, 
    2004 WL 2921830
    , at *2 (citing Reise v. Bd. Of Bldg. Appeals of Newark, 
    74 A.2d 271
    , 274 (Del. 2000).
    9
    Christiana Town Ctr., LLC v. New Castle County, 
    2004 WL 1551457
    , at *2 (Del. Super. Ct. July 7, 2004), aff’d,
    
    2004 WL 2921830
     (Del. Dec. 16, 2004).
    10
    Christiana Town Ctr., LLC, 
    2004 WL 2921830
    , at *2; Breasure, 
    1988 WL 116422
    , at *1.
    11
    Christiana Town Ctr., LLC, 
    2004 WL 2921830
    , at *2 (citing Reise, 746 A.3d at 274).
    12
    Id. at 2 (citing Woolley, Delaware Practice, Volume I §921).
    13
    Christiana Town Ctr., LLC, 
    2004 WL 2921830
    , at *2 (citing Woolley, Delaware Practice, Volume I §939).
    14
    Id. at *2 (citing Woolley, Delaware Practice, Volume 1 §923).
    6
    The “burden of persuasion rests upon the party attempting to show that the Board’s
    decision was arbitrary and unreasonable.” 15
    DISCUSSION
    Abel advances that Secretary Hubbard proceeded irregularly in failing to
    consider the burden of proof at the hearing and, thus, failed to create an adequate
    record for review. The DOL argues that even though Secretary Hubbard did not
    explicitly indicate that the burden of proof at the Hearing was on the DOL, this was
    “inferred” by her mention, in her decision, that she makes it in accordance with the
    PWR. Further, the DOL asserts that Abel fails to cite to any case law providing a
    requirement that the party with the burden of proof be specifically described in each
    decision. In their reply, Abel cites to Konkiel v. Terlemezian16 to support its position
    that the Secretary proceeded irregularly.
    In Konkiel, this Court reversed the decision of the Justice of the Peace Court,
    finding that “the JP Court proceeded irregularly in regard to its determination of
    accounting for whether a ‘triable issue of fact’ necessitated a trial under 25 Del. C.
    §5710.” This Court finds Konkiel to be instructive for the present issue.
    Here, Abel argues that the Secretary proceeded irregularly because she failed
    to state which party had the burden of proof at the hearing. Pursuant to 19 Del. C.
    15
    Christiana Town Ctr., LLC, 
    2004 WL 1551457
    , at *2.
    16
    
    2022 WL 832034
     (Del. Super. Ct. Mar. 21, 2022).
    7
    §1322-74.3.4 “[t]he burden of proof shall be upon the Department.” As correctly
    noted by Abel, Secretary Hubbard’s decision is lacking any mention of which party
    had the burden of proof. While 19 Del. C. §1322-7.1.4.3.4 does not explicitly require
    a statement be made about the burden of proof and the party upon who it is placed,
    neither did the statute at issue in Konkiel and, regardless, this Court found that the
    JP Court had proceeded irregularly.
    Based on the foregoing, this Court concludes that Secretary Hubbard
    proceeded irregularly for failing to provide a statement as to which party had the
    burden of proof. The record is not adequate for review since this Court is unable to
    determine, based on the record, whether the burden of proof was placed on the
    appropriate party at the hearing pursuant to the Delaware Administrative Code. For
    that reason, this Court REVERSES and REMANDS back to the Department of
    Labor.
    Having determined that the matter needs to be remanded, this Court is not
    required to address the remaining arguments advanced by Able. However, the Court
    will address these arguments so that the parties can proceed with a clear
    understanding on what the path forward looks like, to the extent that the Secretary’s
    decision remains “as is” after the burden of proof is properly allocated.
    8
    Abel argues that Hopkins failed to apply Department of Labor Regulation
    §1332-3.1 because he never analyzed the work actually performed by Abel, and that
    the Secretary committed an error of law by affirming the OLLE’s finding. The DOL
    responds that Abel’s proposed “error of law” is really a factual dispute which is not
    a proper analysis under certiorari review. The Court does not agree with the DOL
    that Abel’s proposed “error of law” is really a factual dispute which is not subject to
    certiorari review. In this Court’s view, the issues as framed by Abel are errors of
    law subject to review. Having said that, it is this Court’s view that the Secretary did
    not commit an error of law.
    In her decision, Secretary Hubbard explained:
    In reviewing the evidence of the case, including the testimony and
    documentary evidence, no abuse of discretion or clear error of law is
    found. The OLLE determined that the ironworker rate applied from its
    on-site investigation of the work, from the definitions of laborer and
    ironworker in the Classification Book, and after determining that the
    fencing is security fencing and thus excluded from the definition of
    laborers.17
    29 Del. C. §8503(7) sets forth that the Secretary has the power, duty, and
    function “[t]o establish and to promulgate such rules and regulations governing the
    operation of the Department as may be deemed necessary by the Secretary and which
    are not inconsistent with the laws of this State.” Pursuant to §8503(7), the
    17
    See Exhibit 1 to Opening Brief of Petitioner Abel Fence, LLC, at 6.
    9
    Department of Labor promulgated 19 Del. C. §1322 to implement the provisions of
    29 Del. C. §6960 which reads:
    The specifications for every contract or aggregate of contracts relating
    to a public works project in excess of $500,000 for new construction
    (including painting and decorating) or $45,000 for alteration, repair,
    renovation, rehabilitation, demolition or reconstruction (including
    painting and decorating of buildings or works) to which this State or
    any subdivision thereof is a party and for which the State appropriated
    any part of the funds and which requires or involves the employment of
    mechanics and/or laborers shall contain a provision stating the
    minimum wages to be paid various classes of laborers and mechanics
    which shall be based upon the wages that will be determined by the
    Delaware Department of Labor, Division of Industrial Affairs, to be
    prevailing in the county in which the work is to be performed.18
    Regulation 1322.3.1 is the relevant regulation for this matter. As correctly
    noted by Abel, §1322.3.1 requires that “[la]borers and mechanics are to be paid the
    appropriate wage rates for the classification of work actually performed, without
    regard to skill.” In other words, workers are to be paid according to the tasks they
    do. However, §1322.3.1 also sets forth that the “[d]efinitions for each classification
    are contained in a separate document entitled, ‘Classifications of Workers Under
    Delaware’s Prevailing Wage Law.’ Workers shall be classified by the Department
    of Labor.” Regulation 1322.3.1 allows the OLLE to classify workers by utilizing the
    Classification Booklet. The Booklet is not inconsistent with Regulation 1322.3.1.
    The two documents are meant to work in harmony with each other. The Booklet is
    18
    29 Del. C. §6960(a) (emphasis added).
    10
    expressly permitted by the regulation and allows for further clarification of the
    appropriate classification. The Booklet provides that to the extent that a fence is a
    security fence that the appropriate classification is ironworker rather than laborer.
    The Regulation and Booklet when examined together make it clear that the OLLE
    in analyzing the work being performed is permitted to not only look at the work
    actually being performed but what is involved with the work (i.e., a security fence).
    In the instant case the OLLE relied on the work he saw being performed
    during his on-site visits, and how that work matched the definitions set forth in the
    Classification Booklet. The OLLE determined that the purpose of the fence was
    security. The Secretary’s decision affirming this conclusion was not an error of law.
    Hopkins recognized that some work may not have been ironwork. However,
    Hopkins was hamstrung in his analysis because of Abel’s actions. The OLLE
    requested the daily logs from Abel which Abel was required to keep.19 The logs were
    either not received or did not contain sufficient detail for Hopkins to further
    breakdown the work as between laborer or ironworker. Thus, the OLLE was only
    able to rely on what he observed during his site visits. Based on the OLLE’s site
    visits in conjunction with the definitions set forth in the Classification Booklet, he
    determined the appropriate wage rate to be that of ironworker. This Court finds that
    the OLLE’s determination process to be appropriate based on the relevant statutory
    19
    19 Del. C. § 1322 at 7.1.1.3.3.
    11
    and regulatory provisions discussed herein and the Classification Booklet. Secretary
    Hubbell did not commit legal error in affirming Hopkins.
    CONCLUSION
    For the foregoing reasons, the Secretary of Labor’s decision is REVERSED
    and REMANDED to the Department of Labor.
    IT IS SO ORDERED.
    /s/ Francis J. Jones, Jr.
    Francis J. Jones, Jr., Judge.
    12
    

Document Info

Docket Number: N21A-11-003 FJJ

Judges: Jones J.

Filed Date: 6/15/2022

Precedential Status: Precedential

Modified Date: 6/16/2022