Lead Opinion
Case Summary and Issues
In Aрril 2009, the Board of Commissioners of Allen County (“Commissioners”) met and determined the common construction wages for the renovation of the Keystone Building, an Allen County public work project. In response, the Northeastern Indiana Building Trades Council (“Trades Council”), Kent Prosser, Mark Jarrell, Gregory Stoller, and Michael Kinder & Sons, Inc. (collectively, “Appellees”) brought this action for judicial review.
Facts and Procedural History
On February 10, 2009, a wage committee was appointed to determine the common construction wages to be paid for the Keystone Building renovation project (“Keystone Project”). The Keystone Project is an Allen County public work subject to the common construction wage statute, Indiana Code chapter 5-16-7. Due to a conflict' of interest by one wage committee member, the wag;e committee was subsequently reconstituted. On March 23, 2009, the wage committee met and considered wage scales proposed by the Indiana Department of Workforce Development, the Trades Council, and Associated Builders and Contractors, Indiana Chapter, Inc. (“ABC”).
On April 3, 2009, two of the three Commissioners, Commissioner F. Nelson Peters and Commissioner Linda K. Bloom, met as the awarding agency. The Commissioners received information from Ken Neumeister, a representative of ABC, and from Michael Avila, representing the Trades Council. The Commissioners also received the transcript and exhibits from the March 23, 2009 wage committee meeting. At the conclusion of the April 3 meeting, the Commissioners voted to adopt the wage scale proposed by ABC as the common construction wages for the Keystone Project.
Discussion and Decision
Indiana’s common construction wage statute provides that any entity awarded a contract for the construction of a public work, as well as any subcontractor, “shall pay for each class of work ... on the project a scale of wages that may not be less than the common construction wage.”
I. Appellees’ Standing
The Commissioners raise the threshold issue of whether the Appellees lack standing to pursue this judicial review action. In response, the Appellees argue they have both associational and public standing. The trial court resolved the standing issue in the Appellees’ favor in denying the Commissioners’ motion to dismiss. When reviewing the grant or denial of a motion to dismiss for lack оf standing under Trial Rule 12(B)(6), we must take the allegations of the complaint as true, we are presented with a pure question of law, and our standard of review is de novo. State ex rel. Steinke v. Coriden,
We find associational standing to be the most helpful lens for analysis, and thus address whether the Appellees have associational standing to sue on behalf of their members. The Indiana doctrine of standing “focuses on whether the complaining party is the proper party to invoke the court’s power. Courts seek to assure that litigation will be actively and vigorously contested.” Foundations of E. Chicago, Inc. v. City of E. Chicago,
Turning to the relevant facts, it is undisputed that the Trades Council “is an association of labor organizations representing union craftworkers who work for union employers in Allen County.” Appellants’ App. at 38. Prosser is President of the Trades Council. Jarrell “is a business agent and member of Laborers Local 213, a member union of the Trades Council, and resides in Allen County.” Id. Stoller is a member of Bricklayers Local 4, resides in Allen County, has worked on common wage projects in Allen County in the past, and alleged an interest in working on the Keystone Project. Michael Kinder & Sons, Inc. (“Kinder”) is a signatory employer with Carpenters Local 232 and Laborers Local 213 and operates predominately in Allen County. Kinder has contracted for common wage projects in Allen County in the past and alleged it “would bid on the Keystone project if the Commissioners had adopted the Trades Council’s wage scale.” Id. However, an exhibit attached to the Commissioners’ motion to dismiss shows Kinder did bid on the Keystone Project even though the Commissioners adopted the ABC wage scale, and did so utilizing largely non-union subcontractors.
As for the first element of associational standing, it is undisputed that the wage scale adopted by the Commissioners pays lower than union wages, which are set by multi-employer collective bargaining agreements. As a result, union employers are at a competitive disadvantage relative to non-union employers bidding on the Keystone Project because only the union employers will have to pay wages higher than the Commissioners’ wage scale. Because the union employers— both contractors and subcontractors — are disadvantaged in the bidding process, union workers are less likely to be employed on the Keystone Project. At lеast some union workers — members of the unions that compose the Trades Council, and members represented by Prosser and Jar-rell — are thereby adversely affected by the Commissioners’ decision. As such, those union members would have standing to sue in their own right. See Save the Valley,
Turning to the second element, the interests the Trades Council seeks to protect — the proper setting of a wage scale for the Keystone Project so as to ensure work opportunities for union members— are germane to the Trades Council’s purpose. The Commissioners do not dispute this point. Prosser and Jarrell in their capacities as union representatives seek to protect the same interests, which are likewise germane to the unions’ purposes. The common construction wage statute contemplates that construction trades unions have a strong interest in the setting of wage scales for public projects, as the statute requires a wage сommittee to have one member representing labor, appointed by the president of the Indiana AFL-CIO. Ind.Code § 5-16-7-l(b)(l).
Finally, neither the claim asserted nor the relief requested is such as to require participation of individual union members in this lawsuit. The Appellees’ claim that the Commissioners acted unlawfully in the adoption of a wage scale does not involve or implicate individual union workers in determining the operative facts. And because the relief sought is prospective and injunctive in nature and does not include an award of money damages, there is no need for individual union workers to provide particularized proof or otherwise pаrticipate in fashioning a remedy. See Save the Valley,
The Commissioners argue that Kinder and Stoller have not shown they will suffer direct harm and that the remaining Appel-lees’ standing is wholly dependent on Stol-ler’s standing to sue in his own right. However, as implied above, the Trades Council can sue in its associational capacity on behalf of any and all of its members and is not limited to representing Stoller as the sole union member named a plaintiff. Even if Kinder and Stoller lack standing in their own right, such a conclusion would not require dismissal of the lawsuit or entitle the Commissioners to judgment in their favor. See Crawford v. Marion County Election Bd.,
We conclude and find it dispositive that the Trades Council has associational standing to sue on behalf of its constituent unions’ members. In light of this conclusion, we need not address whether the Appellees can avail themselves of the doctrine of public standing. We do refer to prеvious Indiana cases that, while not addressing standing as an appellate issue, were successful declaratory judgment or judicial review actions brought by labor organizations to enjoin unlawful setting of wage scales for public projects. See Indiana State Bldg. & Constr. Trades Council v. Warsaw Cmty. Sch. Corp.,
II. Subject Matter Jurisdiction
The Commissioners argue that the trial court lacked subject matter jurisdiction to review their common wage determination because, pursuant to Indiana Code section 5-16-7-1 (g), their decision as the awarding agency was “final.” The trial court, in denying the Commissioners’ motion to dismiss, concluded it had subject matter jurisdiction. Because the trial court, in reaching this conclusion, ruled on a paper record and the relevant facts were not disputed, we review the trial court’s conclusion de novo. See GKN Co. v. Magness,
Initially we point out that while Indiana Code chapter 5-16-7 does not by its terms provide for judicial review оf common construction wage determinations, the lack of a statutory provision for judicial review is not dispositive. Our supreme court has stated, in regard to administrative action by local government for which the legislature has not provided a right of judicial review, Indiana courts will still “review the proceedings to determine whether procedural requirements have been followed and if there is any substantial evidence to support the finding and order of such a board.” Mann v. City of Terre Haute,
In a consistent line of cases, Indiana courts have reviewed decisions of public
The Commissioners argue, notwithstanding the above, that Indiana Code section 5-16-7-l(g) prohibits judicial review when the wage committee fails to reach a decision and the awarding agency therefore must make a “final” wage determination. The Commissioners’ argument is premised on the plain and ordinary meaning of “final,” which they assert means “not to be altered or undone.” Brief of Appellants at 8. However, “final” can also mean, as the Commissioners seem to acknowledge, being the last in a series or process. See id. In the context of administrative law, “final” administrative action is a prerequisite, not an impediment, to judicial review. Shettle v. Meeks,
Moreovеr, in interpreting statutes, we look to the statute as a whole to discern the intent of the legislature, avoiding excessive reliance on a selective reading of individual words. Cooper Indus., LLC v. City of South Bend,
III. Substantial Evidence
The Commissioners challenge the trial court’s conclusion that their common wage determination, wherein they adopted the wage scale proposed by ABC, was not supported by substantial evidence. In reviewing administrative action for substantial evidence, neither the trial court nor this court is to try the facts de novo or substitute its judgment for that of the
The statutory definition of “common construction wage” requires the Commissioners to determine a scale of wages for each class of skilled, semiskilled, and unskilled labor “that is not less than the common construction wage of all construction wages being paid in the county where a project is located.” lnd.Code § 5-16-7-4(1). This court has interpreted the phrase “common construction wage” to mean “the scale of wages that are most commonly paid in the community,” or, in mathematical terms, the “mode” wage. Union Twp.,
With the foregoing in mind, we turn to whether the evidence submitted by ABC and received by the Commissioners supports a finding that ABC’s proposed wage scale met the statutory standard of the most common, or mode, construction wage in Allen County. In doing so, we avoid comparing the evidence submitted by ABC with the evidencе submitted by the Trades Council, respectful as we must be of the Commissioners’ prerogative to weigh competing evidence. See City of Jasper,
In support of its proposed wage scale, ABC submitted the results of a wage survey, and a blank copy of the survey, that it sent to its member contractors and other non-union employers.
Based on our review of the record, we conclude there was not any substantial evidence to suggest that ABC’s proposed wage scale represented the most commonly paid construction wages in Allen County. Rather, the ABC survey only identified the wages most commonly paid by the non-union contractors who participated in the survey, which arguably represented the most common wages for non-union contractors overall. It was undisputed that non-union contractors tend to pay each employee a different wage based upon what each employee is perceived to merit, whereas union contractors pay all employees in a given trade and skill level the same wage based upon multi-employer collective bargaining agreements. See id. at 325-26 (discussion between Gaylor and Avila regarding the differing compensation models). Therefore, even though non-union contractors and employees are a majority in Allen County, it cannot be inferred that non-union contractors pay more employees at the most common nonunion wage than do union contractors at the most common union wage. Put differently, the Commissioners could not reasonably have found based on the evidence presented that, for each and every trade and skill classification, the non-union contractors surveyed by ABC paid more employees at the same wage than did Allen County union contractors who were not surveyed.
The Commissioners compare this case to City of Jasper,
Consistent with City of Jasper, we do not hold that a wage committee acts arbitrarily or capriciously or withоut sufficient evidence whenever it adopts a wage scale proposed by a non-union trade group such as ABC. We conclude only that substantial evidence was lacking to support such a decision by the Commissioners under the facts of this case.
Conclusion
The Trades Council has associational standing to sue on behalf of the members of its constituent unions, the trial court had subject matter jurisdiction over the Appellees’ complaint for judicial review, and the trial court therefore properly denied the Commissioners’ motions to dismiss. The Commissioners’ common construction wage determination was not supported by substantial evidence, and as a result, the trial court properly granted summary judgment to the Appellees and set aside the Commissioners’ decision. The judgment of the trial court is affirmed.
Affirmed.
Notes
.Michael Avila was a plaintiff in the Appel-lees’ original complaint, but their amended complaint dropped Avila and added Jarrell as a plaintiff. The caption to the trial court’s appealed order lists Jarrell, not Avila, as a plaintiff. Jarrell is therefore the propеr party on appeal, see Ind. Appellate Rule 17(A), and we caption the case accordingly.
. By separate order, we have denied the Commissioners’ motion for oral argument.
. The Trades Council is an association of labor organizations based in Allen County. ABC is the local chapter of Associated Builders and Contractors, Inc., a national association of non-union construction businesses.
. The trial court also granted the Appellees' motion to strike the Trial Rule 56 affidavits of Commissioners Peters and Bloom, concluding that it would consider only the administrative record generated before the filing of this action. The Commissioners do not challenge this ruling.
. Amicus curiae briefs have been filed by ABC in support of the Commissioners’ appeal and by Indiana Building Contractors Alliance ("IBCA”) in support of the Appellees. Neither ABC nor IBCA raises its own issue or argument, and while we have found their presentations helpful to our consideration of this appeal, we limit our discussion to the arguments made by the Commissioners.
. The statute does not apply to projects in which the actual construction costs less than $150,000. Ind.Code § 5-16-7-l(k).
. The committee is composed of one person representing labor, one person representing industry, one person named by the Governor, one taxpayer who resides in the county where the project is located and is named by the project owner, and another such taxpayer named by the county legislative body. Ind. Code § 5-16-7-1(b).
. Accordingly, we need not address the parties' respective contentions as to whether the trial court erred when it applied a hearsay residuum rule requiring the Commissioners’ common wage determination to be supported in part by non-hearsay evidence.
. ABC’s member contractors number 80 to 100 in Allen County, out of around 1,600 contractors total "in the area." Appellants’ App. at 293. While some union contractors may possibly have received the survey, ABC’s member contractors were the "main source” for the survey, id. at 279, and Neumeister stated union contractors most likely would not have responded to the survey had they received it. Id. at 188-89.
. The Commissioners come near to conceding this point, stating “[njeither the ABC nor the Appellees could state that their wage scale represented the commonly paid wage for ‘all construction wages being paid in the county,’ as required by the statute.” Br. of Appellants at 16. We note the statute requires a wage committee to consider information supplied by the Department of Workforce Development (“DWD”), see Ind.Code § 5-16-7-4(l)(A), and that even if inadequate or incomplete in this case, as the parties sеem to agree, DWD-supplied information should serve to bridge the gap between wage information supplied by unions and that supplied by non-union contractors.
. The dissent argues that there was substantial evidence in part because the ABC wage scale was compiled using mode wages and 90 percent of contractors in Allen County are non-union. However, each respondent to the ABC survey indicated only a common wage that it paid — i.e. the mode wage for its own operations — not the mode or most common wage county-wide. Moreover, the question is not which wage is paid by the most contractors, but rather which wage is paid to the most wоrkers. If the former were true, then differences in the number of workers employed by large and small contractors would have no effect, contrary to the observations in City of Jasper that the wage scale there adopted was supported in part by it reflecting wages paid by the larger contractors in the county.
Concurrence Opinion
concurring in part and dissenting in part.
I concur with the majority’s determination that the Trades Council has associational standing to sue on behalf of the affected members of its constituent unions, and that the trial court has subject matter jurisdiction. However, I part ways with my colleagues’ decision to affirm the trial court’s conclusion that the Commissioners’ common construction wage determination was not supported by substantial evidence. Specifically, the majority determines that the court properly set aside the Commissioners’ determination and granted summary judgment in favor of the Trades Council. I would affirm the Commissioners’ determination because I find substantial evidence to support it.
As pointed out by ABC in its amicus curiae brief, it provided an information packet to the Commissioners during the March 28, 2009 meeting. Specifically Gay-lor, the ABC representative directly responsible for conducting ABC’s common construction wage survey and compiling the results, presented a packet of materials that contained the results of the survey as well as а chart examining union density in the construction industry. The proposed wage scale was based on a return of the survey forms and provided wage scales for all appropriate classes of work.
After this meeting, the Commissioners deadlocked and failed to adopt a wage
The foregoing evidence supports the Commission’s common construction wage determination. Further, this result is consistent with the result in City of Jasper v. Collignon,
ORDER
Appellee Northeastern Indiana Building Trades Council, by counsel, has filed a Motion to Publish.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOW:
1. Appellee Northeastern Indiana Building Trades Council’s Motion to Publish is GRANTED, and this Court’s opinion handed down on June 15, 2011, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.