Illinois Landscape Contractors Association v. The Department of Labor

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0394 Rel

Case Date: 03/28/2007

Preview:No. 2--06--0394 Filed: 3-28-07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ ILLINOIS LANDSCAPE CONTRACTORS ASSOCIATION, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 05--MR--842 ) THE DEPARTMENT OF LABOR, ART ) LUDWIG, as Director of the Department ) of Labor, THE CONSTRUCTION AND ) GENERAL LABORERS' DISTRICT ) COUNCIL OF CHICAGO AND VICINITY ) AND ITS AFFILIATED LOCAL UNIONS, ) JAMES P. CONNOLLY and FRANK RILEY, ) as Officers of the Construction and General ) Laborers' District Council of Chicago and ) Vicinity, and OMAR CONTRERAS, as a ) Member of the Construction and General ) Laborers' District Council of Chicago and ) Vicinity, ) Honorable ) Edward Duncan, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: On July 8, 2004, plaintiff, the Illinois Landscape Contractors Association (ILCA), petitioned defendant, the Department of Labor (DOL), to create a new job classification for landscape workers pursuant to the Prevailing Wage Act (820 ILCS 130/1 et seq. (West 2004)). Presently, landscape workers are included in the laborer classification. After a hearing in March 2005, the administrative law judge (the ALJ) for DOL issued its June 8, 2005, decision, dismissing ILCA's petition. On July

No. 2--06--0394 11, 2005, ILCA filed its complaint for administrative review, naming DOL; Art Ludwig, as the Director of DOL; the Construction and General Laborers' District Council of Chicago and Vicinity and its affiliated local unions, James P. Connolly and Frank Riley, as its officers, and Omar Contreras, as a member (collectively the Laborers' Union). The circuit court affirmed the ALJ's decision on March 8, 2006, and ILCA now appeals, arguing that the ALJ erred in its ruling that landscape workers are properly classified as laborers because landscape workers perform work that is similar to work performed by laborers. We affirm. I. BACKGROUND A. The Parties ILCA is an association of more than 500 landscape contractors. The Laborers' Union is a union representing laborers employed by over 2,000 construction contractors and has entered into a collective bargaining agreement (the Labor CBA) with those contractors. Defendants Connolly and Riley are officers of the Laborers' Union, and defendant Contreras is a member of the Laborers' Union. DOL is the department of the State of Illinois charged with administering and enforcing the Prevailing Wage Act (820 ILCS 130/1 et seq. (West 2004)). B. ILCA's Petition to DOL In May 2004, a bargaining unit of 581 employees of Illinois landscaping contractors voted to select its union, and chose joint representation by the Local 150 of the Operating Engineers union and the Teamsters' Local 703 (Locals 150 and 703) over the Laborers' Union. At the time of the hearing held in March 2005, over 80 Illinois landscape contractors had entered into collective bargaining agreements with Locals 150 and 703 (the Landscape CBA). Of those landscape contractors covered by the Landscape CBA, 40% to 45% worked on public works projects subject

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No. 2--06--0394 to the Prevailing Wage Act. Unlike the Labor CBA, the Landscape CBA adopted a separate class and separate wage schedule for landscape workers, including wages up to $15.62 per hour. In June 2004, DOL published its annual prevailing wage schedules for Illinois counties, including those for the eight counties at issue in this case: Cook, Du Page, Grundy, Kane, Kendall, Lake, McHenry, and Will. In each of those wage schedules, landscape work was included in the laborer job classification. In the schedule, the prevailing wage for laborers working on public projects subject to the Prevailing Wage Act was $36.72 per hour in wages and benefits. The United States Department of Labor (USDOL) also had a classification for plantsmen, and those workers were paid $10.20 per hour in wages and benefits for federal projects in Du Page County. On July 8, 2004, ILCA petitioned DOL and objected to the existing laborer classification for landscape work. ILCA sought three new classifications for landscape workers, arguing that landscape work is dissimilar to the work of general laborers and that such dissimilarity warrants separate classifications. Specifically, ILCA sought to have separate classifications established that recognized "lead plantsman, plantsman, and landscape installer" positions. ILCA's petition described the work of a plantsman to include the following responsibilities: "assisting lead plantsmen in performing such tasks as installing and utilizing plant materials; tree trimming and brush removal; utilization of liquid and dry fertilizers and chemicals; landscape excavation; soil cultivation; weeding; sodding; construction of retaining walls; exterior decking work; erosion control work; stream bank stabilization work; installation of playground equipment and other landscape structures; installation of decorative lighting; the placing of soil and other landscape materials; applying finish landscape materials on subgrade prepared by others; loading and unloading equipment from trucks; and other

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No. 2--06--0394 miscellaneous functions pertaining to general landscape operations on new or existing construction sites." The work of a plantsman also includes: "operating such non-seated equipment as sod cutters, sod rollers, walk behind sod installers, chain saws, air compressors, and water pumps 2 inches or less, but it does not include running any trucks (other than pick-up trucks and trucks transporting personnel) and motorized equipment customarily operated by landscape operators (except for the purpose of training or filling in for lead operator/operator vacations); bricklaying, including the nonmechanized laying of, cutting of, and/or decorative arrangement of bricks; irrigation pipe work, including but not limited to the laying of, installation of and/or assembly of irrigation pipe; or the operation of trenching and other equipment used in the installation of irrigation systems." ILCA described the work of a "lead plantsman" to include all work performed by plantsmen and, additionally, the "responsibility for directing the work of plantsmen and installers on landscaping projects." Landscape installers perform the following work: "the non-mechanized laying of, mechanized cutting of and/or non-mechanized decorative arrangement of paving bricks; building of retaining walls; and the non-mechanized laying of, installation of and/or assembly of irrigation pipe." Installers may also perform the functions of a plantsman. ILCA's petition requested a hearing pursuant to section 9 of the Prevailing Wage Act (820 ILCS 130/9 (West 2004)) to establish the new classifications and wage rates that reflect the actual prevailing wage for each type of work. C. Prevailing Wage Act

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No. 2--06--0394 The relevant portions of the Prevailing Wage Act are as follows. Section 1 declares the policy of the Prevailing Wage Act: "It is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works." 820 ILCS 130/1 (West 2004). Section 3 of the Prevailing Wage Act states in relevant part: "Not less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed *** shall be paid to all laborers, workers and mechanics employed by or on behalf of any public body engaged in the construction of public works." 820 ILCS 130/3 (West 2004). Section 4(e) states the following: "Two or more investigatory hearings under this Section on the issue of establishing a new prevailing wage classification for a particular craft or type of worker shall be consolidated in a single hearing before the Department. *** The party requesting a consolidated investigatory hearing shall have the burden of establishing that there is no existing prevailing wage classification for the particular craft or type of worker in any of the localities under consideration." 820 ILCS 130/4(e) (West 2004). Section 9 of the Prevailing Wage Act governs DOL's duties to investigate wages annually and the filing of objections. In relevant part, section 9 provides as follows:

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No. 2--06--0394 "To effectuate the purpose and policy of this Act each public body shall, during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages ***. *** *** *** [A]ny person affected thereby may object in writing to the determination *** by filing a written notice with the public body or Department of Labor, whichever has made such determination, stating the specified grounds of the objection. It shall thereafter be the duty of the public body or Department of Labor to set a date for a hearing on the objection ***. *** *** At such hearing the public body or Department of Labor shall introduce in evidence the investigation it instituted which formed the basis of its determination, and the public body or Department of Labor, or any interested objectors may thereafter introduce such evidence as is material to the issue. Thereafter, the public body or Department of Labor, must rule upon the written objection and make such final determination as it believes the evidence warrants, and promptly file a certified copy of its final determination ***. " 820 ILCS 130/9 (West 2004). D. The Administrative Hearing On March 7, 2005, DOL conducted a hearing on ILCA's petition for three new classifications (lead plantsman, plantsman, and landscape installer) and wage schedules. The following evidence, in relevant part, is derived from that hearing. DOL's manager of the Conciliation and Mediation Division, Michael D. Kleinik, testified for DOL. Two prior ALJ decisions, one in 1996 and one in 2000, provided parameters for ascertaining

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No. 2--06--0394 rates and classifications. Those decisions held that landscape work was included in the current classification system and that a new class was not needed. Further, those decisions stated that in determining prevailing wages, DOL can consider only public work hours and not private hours. DOL also cannot consider USDOL determinations, because USDOL uses both public and private hours when it determines federal wages pursuant to the Davis-Bacon Act (40 U.S.C.

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