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Date: 08-05-2015


Case Number: NO. 34,719

Judge: MAES, Justice


Plaintiff's Attorney: Shane Youtz, Stephen Curtice, James A. Montalbano

Defendant's Attorney: Marshall J. Ray

Description: In this case, we determine whether the Director of the Labor Relations Division
4 (the Director) of the New Mexico Department of Workforce Solutions (DWS) is in
5 violation of the Public Works Minimum Wage Act (the Act), NMSA 1978, §§ 13-4
6 10 to -17 (1937, as amended through 2011), for failing to set prevailing wage rates
7 and prevailing fringe benefit rates for public works projects in accordance with
8 collective bargaining agreements (CBAs). We hold that under the Act the Director
9 has a mandatory, nondiscretionary duty to set the same prevailing wage and
10 prevailing benefit rates as those negotiated in applicable CBAs and that the Director’s
11 failure to do so violates the Act. We therefore issue a writ of mandamus ordering the
12 Director to comply with the Act and set rates in accordance with CBAs as required
13 under the Act within thirty days of the issuance of this opinion.
15 {2} Petitioner New Mexico Building and Construction Trades Council is an
16 alliance of craft unions representing the interests of thousands of New Mexico
17 employees working on public works projects throughout the State. Petitioners
18 International Brotherhood of Electrical Workers Local 611 and Sheet Metal Workers
19 Local 49 are affiliated members of the Council. Petitioners are hereafter collectively
1 referred to as “the Unions.” Respondent Jason Dean is currently the Director of the
2 Labor Relations Division of DWS. Real Party in Interest Celina Bussey is the
3 Secretary of DWS (the Secretary); Real Parties in Interest Associated Builders and
4 Contractors, New Mexico Chapter, Inc., and the Northern New Mexico Independent
5 Electrical Contractors, Inc., represent contractors performing work on public works
6 projects. The Unions seek a writ of mandamus from this Court directing the Director
7 to set prevailing wage and prevailing benefit rates for public works projects in
8 accordance with rates specified in CBAs in or near a project’s locality, as required by
9 Section 13-4-11(B) of the Act.
10 {3} This is the second time the New Mexico Building and Construction Trades
11 Council has petitioned this Court for mandamus in the matter of DWS compliance
12 with Section 13-4-11(B). In June 2011 this Court denied a petition for writ of
13 mandamus in order to give the Secretary “four or five months” to set prevailing wage
14 and prevailing benefit rates under the Act as amended in 2009. Counsel for the
15 Secretary assured this Court in oral argument that the Director at that time could have
16 rates set within four or five months:
17 I would say this could conceivably be done in four or five months, 18 which I don’t think is unreasonable, especially since the Secretary has 19 assured me, and I’m assuring the Court, that she’s intent on getting this 20 done. I don’t think it requires a writ of mandamus to get it done. But,
1 whatever the Court desires, I’m confident she’ll get it done.
2 The director in office in 2009 determined prevailing wage and prevailing benefit rates
3 to take effect on January 1, 2010 using the pre-2009 amendment wage survey method
4 even though the amended Act became effective on July 1, 2009. And to this date,
5 because wages are still not determined under the amendments to the Act that became
6 effective on July 1, 2009, the rates have been the same as those determined by the
7 director in 2009.
8 {4} In March 2012 the Secretary promulgated two new regulations, see
9 & .19 NMAC, and amended most others, see to .17 NMAC (3/15/2012, as
10 amended through 1/15/2014) but has yet to set rates in accordance with the Act as
11 amended in 2009. See generally Public Works Minimum Wage Act Policy Manual,
12 11.1.2 NMAC (7/23/1969, as amended through 1/15/2014). We acknowledge that
13 litigation is currently pending that challenges the March 2012 changes to the
14 regulations as “arbitrary and capricious, not supported by substantial evidence,
15 outside the scope of authority of the Secretary, and otherwise not in accordance with
16 law” and we express no opinion as to the merits of that proceeding. See No. D-202
17 CV-2014-05512 (indicating in the August 22, 2014, notice of appeal to the district
18 court that the Secretary’s changes to the regulations failed to adhere to DWS’ own
1 regulations as well as the Act).
8 {5} This Court has “original jurisdiction in quo warranto and mandamus against
9 all state officers, boards and commissions.” N.M. Const. art. VI, § 3. “Mandamus lies
10 to compel the performance of a ministerial act or duty that is clear and indisputable.”
11 New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, ¶ 10, 149 N.M. 207, 247 P.3d
12 286. “A ministerial act is an act which an officer performs under a given state of facts,
13 in a prescribed manner, in obedience to a mandate of legal authority, without regard
14 to the exercise of his own judgment upon the propriety of the act being done.” Id. ¶
15 10 (internal quotation marks and citation omitted).
16 {6} This Court will exercise its original jurisdiction in mandamus when the 17 petitioner presents a purely legal issue concerning the non-discretionary 18 duty of a government official that (1) implicates fundamental 19 constitutional questions of great public importance, (2) can be answered 20 on the basis of virtually undisputed facts, and (3) calls for an expeditious 21 resolution that cannot be obtained through other channels such as a 22 direct appeal. 23 State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 21, 149 N.M. 330, 248 P.3d 878
24 (internal quotation marks and citations omitted).
1 {7} The Unions present a purely legal issue concerning whether the Director has
2 a nondiscretionary duty under the Act to set prevailing wage and prevailing benefit
3 rates in accordance with CBAs. Additionally, we recognize that the Director’s failure
4 to comply with a mandate of the Legislature would implicate separation of powers
5 concerns. It is duly established that the legislative branch makes the laws, the
6 executive branch executes the laws, and our “Constitution prohibits any branch of
7 government from usurping the power of [an]other branch[ ].” State ex rel. Taylor v.
8 Johnson, 1998-NMSC-015, ¶ 20, 125 N.M. 343, 961 P.2d 768 (citing N.M. Const.
9 art. III, § 1). “The balance and maintenance of governmental power is of great public
10 concern.” State ex rel. Taylor, 1998-NMSC-015, ¶ 17. As such, the Director’s
11 undisputed five-year delay in setting rates in accordance with the Act warrants a
12 speedy resolution by this Court. As this Court has repeatedly recognized, “when
13 issues of sufficient public importance are presented which involve a legal and not a
14 factual determination, we will not hesitate to accept the responsibility of rendering
15 a just and speedy disposition.” State ex rel. Bird v. Apodaca, 1977-NMSC-110, ¶ 5,
16 91 N.M. 279, 573 P.2d 213. See also State ex rel. King, 2011-NMSC-004, ¶ 21
17 (recognizing the importance of mandamus when timely relief “cannot be obtained
18 through other channels”).
5 {8} The Director and the Secretary argue that mandamus is not a proper remedy
6 because the Director’s duty under the Act is discretionary. See Cook v. Smith, 1992
7 NMSC-041, ¶ 5, 114 N.M. 41, 834 P.2d 418 (“Discretionary acts are beyond the
8 reach of the writ.” (citations omitted)). The Director and the Secretary cite Section
9 13-4-11(B)(2) and (B)(3) to argue that in addition to considering CBAs, the Director
10 must give due regard to other data, opinions, and arguments submitted to DWS,
11 including non-CBA wage rate data, in making prevailing wage and prevailing benefit
12 rate determinations, even when applicable CBAs exist. We disagree. A plain reading
13 of Section 13-4-11 and its recent amendment history provides the basis for our
14 reasoning.
15 {9} The Director is required by the Act to set prevailing wage rates and prevailing
16 fringe benefit rates for all public works projects costing more than sixty thousand
17 dollars to which the State or any political subdivision is a party. Section 13-4-11(A),
18 (B). Prior to 2009, the Act required the Director to obtain and compile wage rate
19 information and give due regard to such information before making a wage rate
20 determination:
1 For the purpose of making wage determinations, the [D]irector . . . shall 2 conduct a continuing program for the obtaining and compiling of wage3 rate information and shall encourage the voluntary submission of wage4 rate data by contractors, contractors’ associations, labor organizations, 5 interested persons and public officers. Before making a determination 6 of wage rates for any project, the [D]irector shall give due regard to the 7 information thus obtained. Whenever the [D]irector deems that the data 8 at hand are insufficient to make a wage determination, the [D]irector 9 may have a field survey conducted for the purpose of obtaining 10 sufficient information upon which to make determination of wage rates. 11 Any interested person shall have the right to submit to the [D]irector 12 written data, views and arguments why the wage determination should 13 be changed.
14 Section 13-4-11(B) (2005). 15 {10} In 2009, the Legislature dramatically and deliberately changed the process for
16 setting wage rates. Specifically, the amended statute required the Director to set not
17 only prevailing wage rates, but also prevailing fringe benefit rates, and the setting of
18 those rates would now be based upon CBAs:
19 The [D]irector shall determine prevailing wage rates and prevailing 20 fringe benefit rates for respective classes of laborers and mechanics 21 employed on public works projects at the same wage rates and fringe 22 benefit rates used in [CBAs] between labor organizations and their 23 signatory employers that govern predominantly similar classes or 24 classifications of laborers and mechanics for the locality of the public 25 works project and the crafts involved; provided that:
26 (1) if the prevailing wage rates and prevailing fringe benefit rates 27 cannot reasonably and fairly be determined in a locality because no 28 [CBAs] exist, the [D]irector shall determine the prevailing wage rates 29 and prevailing fringe benefit rates for the same or most similar class or
1 classification of laborer or mechanic in the nearest and most similar 2 neighboring locality in which [CBAs] exist;
3 (2) the [D]irector shall give due regard to information obtained 4 during the [D]irector's determination of the prevailing wage rates and 5 the prevailing fringe benefit rates made pursuant to this subsection;
6 (3) any interested person shall have the right to submit to the 7 [D]irector written data, personal opinions and arguments supporting 8 changes to the prevailing wage rate and prevailing fringe benefit rate 9 determination; and
10 (4) prevailing wage rates and prevailing fringe benefit rates 11 determined pursuant to the provisions of this section shall be compiled 12 as official records and kept on file in the [D]irector's office and the 13 records shall be updated in accordance with the applicable rates used in 14 subsequent [CBAs].
15 Section 13-4-11(B).
16 {11} “The primary goal in interpreting a statute is to give effect to the Legislature’s
17 intent.” State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (internal
18 quotation marks and citation omitted). “[W]e first look at the words chosen by the
19 Legislature and the plain meaning of those words.” Id. ¶ 10. “[W]hen a statute’s
20 language is ‘clear and unambiguous,’” this Court “will give effect to the language and
21 refrain from further statutory interpretation.” Id. (citation omitted). “Legislative intent
22 is to be determined primarily by the language of the act, and words used in a statute
23 are to be given their ordinary and usual meaning unless a different intent is clearly
1 indicated.” Montano v. Williams, 1976-NMCA-017, ¶ 26, 89 N.M. 86, 547 P.2d 569
2 (internal quotation marks and citations omitted). “[I]n construing particular statutory
3 provisions to determine legislative intent, an entire act is to be read together so that
4 each provision may be considered in its relation to every other part, and the
5 legislative intent and purpose gleaned from a consideration of the whole act.” Id. ¶
6 26 (internal quotation marks and citation omitted).
7 {12} Section 13-4-11(B) mandates that the Director set rates according to CBAs.
8 Subsections (B)(2) and (B)(3) must be read in conjunction with that statutory
9 mandate. When considered as a whole, it is clear that these subsections do not
10 transform the Director’s mandatory, nondiscretionary duty in Section 13-4-11(B) to
11 a discretionary one. These subsections only further clarify the mandatory duty or
12 grant certain rights to interested persons.
13 {13} Subsection (B)(2) requires the Director give due regard to information obtained
14 only when the Director is making a determination under Subsection (B)(1), when the
15 rates cannot be determined in a particular locality because no CBAs exist. If no CBAs
16 exist, rates are determined using the “same or most similar class or classification of
17 laborer or mechanic in the nearest and most similar neighboring locality in which
18 [CBAs] exist.” Subsection (B)(1). Thus, in the event there are no CBAs in a locality
1 and the Director must look to CBAs in a nearby, similar locality, or perhaps in the
2 event there are multiple, relevant CBAs in a locality (a circumstance not expressly
3 contemplated by the Act), any discretion conferred upon the Director is limited to the
4 Director determining which CBA will be used to set the rates, not whether a CBA will
5 be used.
6 {14} Although Subsection (B)(3) provides that any interested person may submit
7 data, opinions, and arguments, the statute does not require the Director to give due
8 regard to this information when making wage and benefit rate determinations when
9 applicable CBAs are present. The Director may only consider additional data,
10 opinions, and arguments when choosing among competing CBAs, which could arise
11 under Subsection (B)(1), for example. While it is true that any person may provide
12 input, that input does not change the standard the Legislature has prescribed for
13 determining prevailing wage and prevailing benefit rates. Section 13-4-11(A) makes
14 clear that the Director must set rates pursuant to the standard that Section 13-4-11(B)
15 provides. See § 13-4-11(A) (requiring contractors to pay mechanics and laborers
16 unconditionally the full amount of wages and fringe benefits due under Section 13-4
17 11(B)). That standard dictates the use of CBAs for rate determinations.
18 {15} Prior to the 2009 amendment, the Director was required to give due regard to
1 all information obtained from various sources, including field surveys and non-CBA
2 wage rates. See § 13-4-11(B) (2005) (“Before making a determination of wage rates
3 for any project the [D]irector shall give due regard to the information obtained [from
4 these various sources].”) With the amendment to the statute, the Legislature imposed
5 a mandatory, nondiscretionary duty on the Director to set prevailing wage and
6 prevailing benefit rates solely according to CBAs. See § 13-4-11(B). Furthermore, the
7 Legislature imposed a continuing duty on the Director to update the prevailing wage
8 and prevailing benefit rates according to “applicable rates used in subsequent
9 [CBAs].” Section 13-4-11 (B)(4). “We operate from a working assumption that the
10 Legislature . . . is well informed about the law and that its legislation is usually
11 ‘intended to change the law as it previously existed.’” State ex rel. King, 2011
12 NMSC-004, ¶ 50 (citation omitted).
15 {16} Mandamus will only issue if there is no “plain, speedy and adequate remedy
16 in the ordinary course of law.” NMSA 1978, § 44-2-5 (1884). The Unions represent
17 employees whose wages have been, and continue to be, directly affected by the
18 Director’s failure to comply with the Act. Although Section 13-4-15 provides an
19 avenue to appeal “any determination, finding or action of the [D]irector made
1 pursuant to the [Act],” this remedy is wholly inadequate under these circumstances.
2 {17} It has been over five years since the Act was amended, and the Director still has
3 not set prevailing wage and prevailing benefit rates according to CBAs. DWS has
4 been simply setting the rates the same as those that have been in effect since 2010.
5 The current rates are based on field surveys as dictated by the Act prior to its
6 amendment in 2009. The Director and the Secretary assert that the rates have not been
7 “set” in the last few years but simply reissued due to a stay imposed pending the
8 outcome of the litigation regarding the regulations issued by DWS. The Director and
9 the Secretary further argue that because rates have not been “set,” Petitioners’ injury
10 of reduced wages in the past five years is speculative. We disagree with this
11 characterization. Public works projects have continued since 2010 with mechanics
12 and laborers being paid wages using wage and benefit rates that are now five years
13 old. Semantics aside, wages have been “set” for the purposes of the Act, and after five
14 years with no increase in wage rates, these stale wages are prejudicing the right of
15 every mechanic and laborer on a public works project to be paid a wage rate
16 consistent with applicable CBAs.
17 {18} From February 2014 to April 2014, the Unions and other labor organizations
18 submitted copies of current CBAs and formal requests for updating the rates to the
1 Director. See Section 13-4-11(B)(4) (“[T]he records shall be updated in accordance
2 with the applicable rates used in subsequent [CBAs].”) The Unions’ petition to this
3 Court summarized and attached these documents. The Unions’ documentation shows
4 that the outdated prevailing wage and prevailing benefit rates are not aligned with
5 current CBAs in effect throughout the State. The Unions report that the Director’s
6 inaction has resulted in the payment of wage and benefit rates five to thirty-five
7 percent below what is required by the Act for most reported wage categories.
8 {19} In recent years a number of separate appeals have been taken from several
9 DWS regulatory actions to district courts, but none have resulted in the setting of new
10 rates in line with CBAs. See Nos. D-101-CV-2010-02705; D-101-CV-2010-02758;
11 D-101-CV-2010-03276; D-101-CV-2011-00191, and D-202-CV-2014-05512.The
12 Legislature issued a clear mandate, and the Director must comply. “It is the high duty
13 and responsibility of the judicial branch of government to facilitate and promote the
14 [L]egislature’s accomplishment of its purpose.” State v. Stevens, 2014-NMSC-011,
15 ¶ 15, 323 P.3d 901 (internal quotation marks and citation omitted). To countenance
16 any further delay would be unacceptable and irresponsible. The Director must take
17 immediate action to set prevailing wage and prevailing benefit rates that comply with
18 the Act and reflect current economic realities.

Outcome: For years the prevailing wage and prevailing benefit rates for public work
projects have been stagnant due to the Director’s delay in issuing new rates under the amended Act. The Director’s delay in setting new rates and his failure to comply with the Act is inexcusable. Unless this Court grants the requested writ without further delay, workers on state construction projects will continue to be denied their lawfully-mandated compensation as they have been for the past five years, with no alternative timely remedy to correct the Director’s persistent refusal to comply with the law.

This opinion shall serve as our writ of mandamus requiring the Director to comply with the Act as set forth above.

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